Charity Law Bulletin - First Issue - January 2016

This bulletin is written by Hubert Picarda QC - Author of The Law and Practice Relating to Charities, Fourth Edition  and the First Supplement to the Fourth Edition

If you would like to contact Hubert Picarda to be added to his mailing list, please email hubert@hpicarda.com or telephone 020 7242 3566.

JANUARY 2016
FIRST ISSUE

  • Preface
  • Religion Public Benefit and the Preston Down Trust
  • The Nina Wang Case in Hong Kong
  • Terrorism anti-terrorism and charities
  • Think tanks politics and charity
  • Case lists VAT and News items
  • Correspondence
  • Book Reviews

    PREFACE
    The start of a new year with the events of the past year behind us is a suitable launch pad for the inauguration of this first Charity law Bulletin or Newsletter bearing my name. A further shorter issue will follow in February if possible or March. This first Bulletin has a lot of ground to cover. It is long because it not only identifies material since the 2014 Supplement appeared but also other second thoughts about matters predating the Supplement to the latest edition of Picarda Law and Practice relating to Charities (4th ed 2010).The approach adopted with the 2014 Supplement though not its strict form continues here. The abiding concern has been to chronicle, and sometimes summarily list, in an appropriately selective way, legislative and illuminating case law developments here in the UK. To these are added interesting decisions and initiatives taken in other common law jurisdictions in Australasia and across the Atlantic. Brief mentions of News items will also rank for selection. And Correspondence is solicited for future issues.

    Université de Montréal International Seminar on Charity Law Montréal in May 2015 This conference was attended by Judge Alison McKenna Professor Debra Morris Dr Mary Synge Dr Oonagh B Breen and the writer from the British Isles and by academics and practitioners from Canada United States and the Antipodes. The presentations and discussions have coloured the approach adopted in this issue. A close watch has also been kept on various updates in solicitors’ newsletters and on official websites for inclusion here. Some of these date back to the period between the appearance of the fourth edition in late 2010 and the Supplement at the start of November 2014. Subjects or topics in flux and crisis like fundraising, awaiting reactions to Sir Stuart Etherington’ s commissioned report by William Shawcross on that topic, and further guides on counter-terrorism measures regarding charities invite postponement until a clearer picture emerges. The same applies to gift aid reforms in progress and the lessons to be learnt from the cases of Cup Trust, Kids Company and Olive Cook .

    21st Annual Conference of the Charity Law Association An opportunity has also been taken to incorporate cross references to materials released to attendees at the 21st Annual Conference of the Charity Law Association in October 2015 (21 AC CLA 2015) and to some of the 97 or more publications by way of guidance issued since the last edition and supplemented at or since the October 2015 Charity Law Association conference.

    Internal disputes within membership charities and campaigning secularist bodies . Nevertheless there is a persistent wish to adhere to the predominant domestic concerns of practitioners here in England and Wales. Exposure in the advisory part of my well filled professional practice in the past year, detailed near the end of this issue, to internal disputes within charities as well as to the rise in litigation by new charities pursuing secularist agenda keep in the limelight the problems generated by campaigning charities; and the phenomenon of ill will within charities poses problems that are not always easy to resolve.

    In the last week of January 2015 Matthew Parris wrote a memorably shrewd and all too true article in the Spectator entitled ‘Why are volunteers so mean to one another ?’ which should be a compulsory read for contentious volunteers and the committee members who face their carping gripes and ire.
    One high spot of the first three month of 2015 was the Times investigation to call in question yet again the public benefit of a faith namely the Plymouth Brethren Christian church (Exclusive brethren). This is the first item summarily discussed below.

    Decision of the Court of Final Appeal in Hong Kong in the Nina Wang Chinachem litigation Another important decision has been the crucial decision of the Court of Final Appeal in Hong Kong in the Nina Wang Chinachem litigation This seminal case was heard at first instance by Poon J with a decision on 22 February 2013 and by the Hong Kong Court of Appeal with a decision on 11 April 2014.In both of these I advised The final appellate hearing took place in April this year and the main issue was concluded by the unanimous decision of the Court of Final Appeal in Hong Kong on 18 May 2015 ordaining the preparation of a scheme . Lord Walker of Gestingthorpe delivered a structurally neat, subtle, and comprehensive judgment upholding the claim of the Secretary for Justice that the Foundation is held on charitable trusts due to be clarified by the court under its scheme making powers . A scheme, then, is to follow as outlined in the Department of Justice announcement in July 2015. Shortly thereafter in August 2015 the costs element was the subject of a further adjudication. The content of all three decisions merits a full scale article beyond the scope of this Bulletin which for present purposes can only give a preliminary assessment of the importance of the final decision to the future of will construction in the case of charities. The mechanism used for, and the process adopted for, the working out of the scheme will be interesting as well as the results of the process.

    Terrorism and charities and political campaigning in the light of Friday 13 November 2015 The burgeoning influence of terrorism, counter- terrorism measures and the controversies surrounding the various proposed strategies and affecting charities are engaging more and more attention. So do the political activities of think tanks and political campaigners and their controversial effects on charities. The Paris massacre on Friday 13 November 2015 gives further impetus to a search for an appropriate comprehensive and effective strategy to combat the virus that is attacking civilised living and freedoms.

    Case publications and book lists and VAT news The Bulletin further includes a pot-pourri of case lists, publications lists,book lists, and VAT information. Also added are other news items and a selection of book reviews of the author’s 4th edition of the Law and Practice Relating to Charities and a Profile of work done.

    It is always convenient to be reminded of additions to the bibliography; and materials not appearing in the Supplement and this Bulletin have been foreshadowed for further investigation.

    The Bulletin is being distributed to transatlantic experts in academe and at the cutting edge of charity and philanthropy in the hope of securing mutually beneficial exchanges of information, comparative insights, and learning.

    Meanwhile let readers confirm their interest in receiving further free bulletins and tell the author what they would like to see covered and what they think of this survey by replying please to hubert@hpicarda.com

    Letters: HUBERT PICARDA QC Third Floor North, 9 Old Square LONDON WC2A 3SR
    Email: hubert@hpicarda.com Tel : 020 7242 3566
    www.charitylawchambers.co.uk
    © Hubert Picarda QC

     

    RELIGION PUBLIC BENEFIT AND THE PRESTON DOWN TRUST

    The fog or mist suffusing the charity landscape as a result of the new public benefit requirement has not been satisfactorily dissipated by the compromise decision of the Charity Commission on 3 January 2014 in the Preston Down Trust case involving a meeting house of the Plymouth Brethren Christian church otherwise known as the Exclusive Brethren and an amended Trust deed. There had been an application to register a meeting house, which had previously been excepted from the need to register by the trustees of the applicant meeting house trust and whose status rested on abundant legal precedent which treated the advancement of religion as prima facie charitable provided it was not subversive of morality : see Thornton v Howe (1862) 31 Beav 14 ;54 ER 1042 and on Holmes v Attorney General1 which had held a trust of the Exclusive Brethren to be charitable in 1981. The application was rejected the Commission refusing to register the Trust: see the contribution by the writer in CLPR Vol 16 2013-2014, 85 at 91-98 and 100-103.

    As is well known among lawyers with their finger on the pulse of charity law, the anticipated hearing in the First-tier tribunal was first postponed. Then after negotiations it became the subject matter of a further decision of the Charity Commission (CC) about the amended objects of the Church in question. What was first in issue, as long ago as 2014, was effectively whether the status of the trusts of the Preston Down Trust governing the designated meeting hall of an established denomination of a Christian religious group or church namely the Exclusive Brethren or Plymouth Brethren Church could be questioned and reassessed , given that there was a High Court decision made by Walton J in Holmes v AG that had decided in relation to another meeting house of the same persuasion that it was charitable for the public benefit.

    It is to be doubted whether the Commission has been empowered to reverse High Court decisions or to depart from the established principles applied to that case to the prejudice of, rather than for the benefit of, a charity. The Upper Tribunal is a court of record but the First-tier tribunal stands on an inferior footing and the Commission itself is a creature of statute subject to that tribunal, The ability of the Commission to make new law or to create new heads of public policy2 is controversial and not so far satisfactorily defended by reference to authority: bare assertion is not enough.

    Public benefit in pre-2006 case law It is welcome that the Commission has, at any rate in part, upheld the main elements of the public benefit test from pre-2006 case law. Yet its analysis is not entirely free from criticism some of it pretty telling. True, access to worship is still accounted to be well to the fore as an important element in a congregational charity and as the subject of increased focus. So too the interaction of religious people with the wider community, but the Commission leaves open the question of how far the old cases continue to be good law. In particular, the CC decision hints that the 2006 Act might have given rise to a greater need for religious bodies – particularly those with closed or inward-facing elements – to demonstrate a beneficial impact on the wider community.

    Happily, the Commission does not go as far as requiring places of worship to achieve certain numbers in their congregations. However, the suggestion that it may no longer be right not to evaluate the precise amount of benefit provided by a religion carries with it echoes of the measurable thresholds for bursaries that were challenged in the ISC Case. Does this mean, as has been suggested, that religious groups will be increasingly expected to subordinate spirituality to more tangible expressions of their worth to the community? When the Charities Bill 2006 was debated Ed Miliband, as the writer seems to remember, did not require established Christian congregations to produce cogent evidence that they were sufficiently demonstrating their worth to the community3. This was previously accepted as inherent in Christian denominations even those of an austere or unpopular tendency. Practising attendees at a church are assumed not to be hypocrites and to practise their faith on leaving church. Judgments on the excommunication or shunning of apostates or on internal rules about marriage to outsiders or non-believers may be argued to be an unimportant irrelevance or a subtraction from the existence of an assumed and accepted prevailing or dominant benefit accruing from the existence of a pervasive faith in the supernatural and working out of that purpose in the adherent’s life and relations with other members of society.

    In keeping with its practice in many recent cases the Commission boldly attempted first time round to justify its re-assessment of the Plymouth Brethren Christian church on the basis of, or by reference to, posited changing social perceptions4. This is a rework of the social impact and public character tests directed to imposing a new form of public benefit.

    Prior to 2006, the leading cases required a "radical change in circumstances" for a change in charitable status or destination to ensue. Airy references to changing social perceptions as though Charity Commission functionaries were in the position of High Court judges able to take judicial notice of posited partial popular sentiment or sectional enthusiasms could lead to the meaning of public benefit fluctuating at the whim, and with the vagaries, of public opinion ascertained by opinion polls or puffing assertions of groundswells of support rather than by the long accepted notions of a settled society. It can be argued that even now there has been no radical change in circumstances that has destabilised the position of established religions. Does or should secularism or the brand of humanism practised or adhered to by the British Humanist Association or the National Secular Society trump the faith of Islam and its aspiration to spread sharia law and the sanctions and penalties of that law? However, the decision at Commission level rejected Holmes v AG in part because "both the diversity of religion and public attitudes towards religion and its benefits to society have evolved during this period". This smacks of a subjectively selective judgment that denies the place of religion and spirituality in improving the morality of its adherents so as to contribute to a law abiding and tolerant society practising good citizenship. The argument deployed by functionaries within the Commission, who do not form a court, is that we are living in what they argue is an increasingly secular society with posited “attitudes”. The argument perhaps owes more to subjective enthusiasm than to entrenched settled values and does not begin to represent a radical change in circumstances justifying making a radical change in the law capable of being adjudicated and acted upon by the Charity Commission .

    The propriety of the Commission rejecting, or substantially departing from a High Court decision such as Holmes v AG5 which expressly confirmed the charitable status of the Brethren, a status recognised and long accepted in earlier cases6 even for the limited purpose of reviewing public benefit has every appearance of being a deviation from the doctrine of stare decisis. It also brings into question whether any charity whose status rests on a specific pre-2006 case can be confident that the Commission will not consider itself justified in departing from that authority. The robust answer to this is that offered by both Professor Peter Luxton and Dr Mary Synge, namely that the Commission has no mandate or remit to change the law or formulate new law do so7 a view shared by others8 . The arrogation of such a power is, if anything, heterodox and unsound.

    The continuing interest of the Charity Commission for England and Wales in activities as a measure of public benefit in the case of an established religious charity, indeed a charity accepted in a succession of cases as a permissible and legitimate manifestation of Christianity, appears to be outside the category of a case where there are ambiguous or uncertain objects and to be heterodox and unsound.

    Inherent in Christianity Judaism and, it is apprehended, moderate Islam is due respect for law and order and one’s fellow members of the human race. We are all citizens of the same world. In Islam the good neighbour conduct and civic duties of neighbourliness to non-Muslims are accepted by moderate Muslims. The neighbour principle is established in Old and New Testament commandments and is referred to in the common law by Lord Atkin in Donoughue v Stevenson [1932] AC 562 ,HLSc and by Lord Denning in Candler v Crane, Christmas &Co [1951] 2KB 164 .

    In line with the ISC Case, the Commission decided that it should focus on the specific circumstances of Preston Down Trust and that, in the case of a religious institution established to further a particular version of Christian doctrine (like Preston Down Trust), that institution needed to provide evidence that its doctrine had a beneficial impact. Some forms of fundamental Christianity may not be everyone’s cup of tea. But the austerity and to some the grim Sabbatarian stance of the Protestant Truth Society and the Lord’s Day Observance Society in the 1950s or the Free Church of Scotland Wee Frees who effectively cold shouldered Lord Mackay of Clashfern because he had attended the memorial service of the catholic law lord Lord Russell of Killowen were in each case recognised charities do not rank for comparison with the harm done by adherents to extreme forms of Islamism manifesting religious belief in Salafi notions that are detrimental to civil harmony and contrary to public policy9. There was no ambiguity or lack of clarity in the expressed objects of the Preston Down Trust justifying the application of the so called activities test Yet until the matter was compromised by substituted objects the Commission felt it was entitled to look at the activities of the Gospel Hall Trusts to assess whether the pursuit of Preston Down Trust purposes had a beneficial impact on the community at large rather than assessing whether there were any public policy objection sufficient to detract from or entirely negate the claims of Preston Down Trust to continue its thitherto accepted religious disciplines which were an internal matter irrelevant to public benefit as defined in case law.
    The Charity Commission registered The Three Faiths Forum, whose registration the writer helped to secure, a charity to promote religious tolerance between the three Abrahamic faiths: Christianity the Jewish faith and Islam .10

    The supervening decision of the Charity Commission was issued on 3 January 2014 and was due for review a year later, in other words from the beginning of January 2015. In the course of the start of the ensuing review the decision of January 2014 was the subject of further media criticism and controversy. Notable was the recital in the Times on March 18 2015 of reports from various disillusioned and disgruntled former adherents individually or as part of a confederated group. A further activist group opposing charitable status for the Trust is the British Humanist Association (BHA) who appear to be pursuing, and to claim the right to pursue, an increasingly proactive political role encompassing litigation agenda that are, or might be accounted, integral to the purposes of BHA. The National Secular Society is another such proactive group one of whose avowed objects is to end the privileges of religion.

    A point made by a plurality of commentators is that just as it is not the job of the Charity Commission to make or develop the law defining public benefit11 it is likewise not the job of the Charity Commission to develop or formulate public policy theories relating to charities in England and Wales, for this falls within the mandate or remit of the legislative and executive branches of Government. It is in any case to be doubted whether the Commission needs to go further than to confess that isolated instances of family disagreements and family unhappiness over religious secession resulting from the doctrine of separation are not matters for the courts to pry into or adjudicate upon, any more than other forms of excommunication, cutting off or exclusion whether occurring in the Roman Catholic Church12 or the orthodox Jewish faith13 or formerly (but no longer) in the Salvation Army14 . The objectives of charity regulation set out in the Act and the policy of state neutrality in respect of religious differences and diversity are clearly in conflict.

     

    THE NINA WANG CASE IN HONG KONG COURT OF FINAL APPEAL

    In the first and second decades of the twenty first century the longest charity litigation was that involving the Wang fortune in Hong Kong and the role of Chinachem Charitable Foundation Ltd (The Foundation). Because the litigation took place in Hong Kong some wills and probate practitioners in this country may have overlooked it. 15But since the leading judgment in the case was delivered by Lord Walker of Gestingthorpe and has much to say on the way in which modern courts are now inclined to deal with the interpretation of wills it is a case which should definitely engage attention. Even though the particular wording in the will is very much a one off, the technique applied by the court is an extension of the law governing the interpretation of commercial instruments to unilateral documents including wills. That a will is a wholly unilateral document16 and is also ambulatory17 is a distinguishing characteristic that has tended in the past to cause the construction or interpretation of wills to be regarded as different from the construction of other instruments not sharing those features. Yet while the two features are still very relevant to the construction of wills, the modern tendency is for the court while recognising the points of difference between wills and commercial documents to place still more emphasis on principles that are applicable to the construction of all legal documents. This tendency is referred to in the judgments below (at first instance before Poon J and in the Court of Appeal .19

    This approach was embraced by Lord Neuberger in the Supreme Court of the United Kingdom in Marley v Williams [2015] AC 129 an extraordinary will case with outlandish facts involving a husband and a wife each of whom wished to make a new will and where each of the spouses contrived, remarkably, to sign the will prepared for the other without either of them or the witnesses or the solicitor who prepared the wills spotting the mistake.

    There Lord Neuberger after referring to the fact that during the last 40 years the House of Lords and the Supreme Court had laid down the correct approach in the interpretation or construction of commercial contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 (Prenn) and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 (Rainy Sky) articulated the following propositions20 as regards contracts and wills:

    “19 When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (v) ignoring subjective evidence of any party’s intentions. In this connection, see Prenn, at pp 1384 – 1386 and Reardon Smith Line Ltd. v Yngvar Hansen-Tangen (Trading as H E Hansen-Tangen) [1976] 1 WLR 989, per Lord Wilberforce, Bank Of Credit and Commerce International SA v Ali [2002] 1 AC 251, para. 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky, per Lord Clarke of Stone-cum-Ebony J S C, at paras. 21 – 30.

    20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Angen Inc. v Hoechst Marion Rousell Ltd. [2005] 1 All E R 667, para. 64, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.” To the same effect, Sir Thomas Bingham M R said in Arbuthnott v Fagan [1995] CLC 1396, 1400 that “courts will never construe words in a vacuum”.

    A little lower down

    23. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para. 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see e.g. Theobald on Wills, 17th ed. (2010), chapter 15 and the recent supplement supports such an approach as indicated in Royal Society for the Prevention of Cruelty for Animals v Sharp [2011] 1 WLR 980, para. 22, 31). Indeed, the well-known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that when interpreting a will, the court should “place [itself] in the testator’s] armchair”, is consistent with the approach of interpretation by reference to the factual contents.”

    The approach taken in the English High Court when it was construing the will of Lucian Freud in the case of In the estate of Lucian Michael Freud21;; Rawstron and Pearce v Freud (a decision which does not appear to have been cited to the Court of Final Appeal in Hong Kong) is also not without interest. It too was examining the rules of construction laid down in Marley v Rawlins in a case involving a prima facie absolute gift in a professionally drawn (and not home-made )will that never once used the word trust but this time against the backdrop of secret trust22. The judge in the Lucian Freud case followed the approach of Lord Neuberger PSC in Marley v Rawlins.

    A key passage in the judgment delivered by Lord Walker of Gestingthorpe in the Wang case is to be found in paragraph 31. Two all important general principles of construction are that words must be read and understood in their context, and that the will must be read as a whole. By way of general reminder he records that Lord Mustill in Charter Reinsurance Co Ltd v Fagan [1997] AC 313, at 384, neatly combined the two principles in a single phrase, referring to the need “to read the words ‘in the landscape’ of the instrument as a whole”. But how, he asks rhetorically, in practical terms, is the court to go about its task of reading the will as a whole ?”. Some helpful guidance, he suggested, was given, again by Lord Neuberger in his dissenting judgment (upheld by the Supreme Court) in Re Sigma Finance Corporation.In the Supreme Court Lord Mance said [2010] 1 All ER 571 ,paragraph 12:
    “Lord Neuberger was right to observe that the resolution of an issue of interpretation in a case like the present is an iterative process, involving ‘checking each of the rival meanings against the other provisions of the document and investigating its commercial consequences’.”

     

    This applies to a will also, if “commercial” is read as “practical”. The iterative process is often laborious. It may require the court to go forwards and backwards painstakingly between the various words and phrases occurring in different parts of the document, which give rise to the problem. That is the process that must be followed in construing Nina’s will.”

    Lord Walker then carried out an elaborate and assured deconstruction or unpicking of the elements the details of which appear in paragraphs 47-52 a discussion too long to do justice to, or comment upon, here. The particular attention of the reader is directed to that passage for completeness.

    The judgment at first instance by Poon J struck some analysts of the decision as disclosing what appears to be a strong judicial attitude (which no doubt accorded with public opinion as reflected in the Hong Kong Press) and mirrored in the hearing and decision in the Hong Kong Court of Appeal (Lam VP Cheung and Kwan JJA) that the affairs of the foundation should be subject to strict controls.

    In a sense it could therefore be accounted a purposive interpretation. As such it presented a challenge for charities seeking to treat prima facie precatory wording as resembling letters of wishes capable of having ‘soft law’ significance. The challenge arises from the possibility of the court inferring (as happened) mandatory force to wording that would otherwise fall short of express trust. Moreover the decision signals a seeming willingness to exclude any legal doctrine nostrum or maxim previously sought to be applied to all wills from being applied to home made wills. Instead the four corners of such home made wills can (and perhaps should according to the modern tendency) be rigorously scoured for material that rebuts any artificialities of construction. How far the long established principle of benignancy in favour of charities in will construction is considered relevant and important is not apparent.

    Iterative process The so called “iterative” process, by which the various conclusions in the present case were reached needs some explanation. “Iteration” and the adjectival “iterative” are both chameleons words. Each is, as its very name suggests concerned with repeated cross referencing to other language in the will (italic emphasis added). The process is subtle and sophisticated and the externals of the process intricate , labyrinthical and in some respects riddling. This resulted of course in part from the opposing arguments which were themselves not free from these elements, though the final decision is authoritative within the legal system in Hong Kong’s Special Region.

    The application of this approach in relation to a prima facie outright gift to charity to which unclear untutored loose language is attached may be thought to be worrying. To sustain additional control over a charity by reference to, and spelling out of such language, by elaborate inferences, a need for control, should require a strong case to support it.

    “[t]he legal nature of a corporate The fact that the case was thrice heard and differing arguments were mounted on either side prompts the speculation: would the testatrix sitting in her armchair have wanted huge sums of money to be spent using this technique litigating her injudicious language rather than accepting and construing it according to its natural prima facie meaning .

    Concession of a quasi-trust. It was apparently (and some might think regrettably) conceded in argument by the Foundation that a corporate charity held its property according to a “quasi-trust”. That language was employed by a judge in an American case cited in Picarda Law and Practice relating to Charities (4th edn) 272-273 : see Brigham v Peter Bent Brigham Hospital 134 F 513(1904) at 517 per Putnam J (“Such a holding is sometimes called a quasi-trust …but the holding does not constitute a true trust “) Lord Simon in a UK case denied the aptness of the term and it is indeed misleading having the potential to signal or lay the groundwork for a mandatory rather than a precatory outcome . The concession was a concession too far and perhaps ought not to have been made Some academics have embraced the quasi-trust language with apparent enthusiasm, for example Ian Dawson and John Aldred of the Newcastle Law School (see “The Nature of the Proprietary Interest of a Charitable Company or a Community Interest Company in its Property” ( (2007) Trust Law International 21(1) 3-16 and Professor Alastair Hudson of Queen Mary College London see Public interest trusts www.alastairhudson.com Otherwise the expression ‘quasi trust’ has significantly not had any other currency. Nor has it been comprehensively defined or analysed. Even so it has the potential to give rise to all sorts of misunderstandings not least in connection with the extrapolation of incidents of the alleged quasi trust, including its ancillary powers and other regulating provisions. On the other hand, beneficial ownership by a corporate charity still remains subject to interventions by the Attorney General to the extent that the charitable corporation flouts its fiduciary duties to charity.

    Although it is twice suggested that the basis on which a corporate charity holds its property is not entirely clear”(see Picarda Law and Practice Relating to Charities 2nd ed 383-385,4th ed 272-275), it is in fact now apparent that such corporations are not trustees, though they are analogous to them: see Liverpool and District Hospital for Diseases of the Heart v Attorney General [1981] Ch 193. Indeed as pointed out by the Charity Commission for England and Wales it now seems reasonably clear that the corporate property of a charitable company, like that of any other company, is not generally held on a trust. In Rabin v. Gerson Berger Association Limited (1987) - not reported on this point) Ralph Gibson LJ said:-

    "The principle of law, as I understand it, is that a company for exclusively charitable purposes does not, by reason only of that attribute, hold all its property on trust; it may own property beneficially which, by reason of its constitution, it must apply to its charitable purposes..."

    Application to its charitable purposes includes applications made after bona fide consideration of consideration of any expressed wishes falling short of being mandatory restrictive provisions.

    None of the judges in the Liverpool Hospital case24 or the Vernon case25 or Von Ernst & Cie v IRC 26articulated the point in this way, while the Charity Commission for its part suggested that it would seem that the only conceptual basis for depriving a company of the beneficial ownership of its corporate property (so as to ensure that that property is irrevocably dedicated to charitable purposes, notwithstanding the fact that the objects of the company are no longer regarded as charitable) is by the imposition of a trust. Indeed, the imposition of a trust has in this contingency only a limited prophylactic purpose namely to prevent charitable property being applied otherwise than to charity. In other words a trust is imposed to objects that are not (or are no longer) charitable. In the absence of express crystal clear language the previous conventional view was that there can reasonably be no room for imposing a super-added trust in derogation of an out and out gift conferring an absolute beneficial interest to which precatorily framed provisions are annexed.

    Moreover it seemed appropriate to expect that the court could not conceive either that its own function or that of the Secretary for Justice was to uphold or to contend for outcomes that are inconsistent with the limits of the charitable objects already encompassed by the relevant objects clause as already drafted, so as to have an outreach intended to be controlled by the designated Foundation. It ought not to carry with it implications that any accompanying expressed wishes must therefore necessarily be interpreted as imposing, creatively, mandatory, binding, trust-like fiduciary obligations of a comprehensive nature . Such a construction, which some at the time considered heterodox and unduly conjectural is, the argument runs, ex hypothesi not benignant but detrimental. Fettering the discretion of the governing body of the charitable corporation by constant supervision by a grouping of external persons or perhaps an organisation with a role perhaps analogous to a protector, would normally require very express language. However the judgment of the Court of Final Appeal following that of the two lower court must be treated as having detected or identified sufficient imperative language and other contextual indicia suggesting a trust or something akin to a trust producing such an outcome. Such mandatory control by a defectively defined body compares unfavourably with a gift to a charitable corporation with defined objects whose exercise of discretionary directions would be controllable in the last resort of course by the court.

    It is true that the Attorney General in charity cases in England and Wales (and in Hong Kong the Secretary for Justice) is a necessary party where the trust in question involves a gift to an established charitable institution to be held on trusts that differ from the trusts upon which the general funds of the institution are held Wellbeloved v Jones (1822) 1 Sim &St 40; Sons of the Clergy Corpn v Mose (1839) 9 Sim 610 and see AG v Warren (1818) 2 Swan 291. But the Foundation took the view and argued, in a presumably muted way, at first instance and beyond, that the Secretary for Justice in Hong Kong and those advising him should tread carefully and the former was arguably misdirecting himself and the latter (the advisers) were arguably misdirecting themselves in going beyond neutrality and helping the court by advancing a controversial, suppositious construction not calculated to be in the interest of charity and likely to deter mega-rich billionaire donors from giving. Indeed such, or some such, donors would or might not want their outright gift to a corporate charity bogged down in bureaucracy with discretionary decisions being reviewed by protector-like outsiders by reference to criteria not yet prescribed: cf Lau Kah Hee “The Control of Trust Protectors”: 26 TLI No 1 (2012) 39-51). Rather they would expect that the incidents of the prize would not need anything other than the exercise of a discretion in a plausible and spirit of the gift way paying due regard to the expressed wishes.

    In England and Wales the Charity Commission already recognises that it may be appropriate for a charity to have appointed by scheme a person as protector of the charity with the function of exercising defined powers and whose fiduciary duty will be to ensure the integrity of the administration of the charity, and who must report to the Commission any matter which he has reasonable cause to believe is likely to be relevant for the purposes of the exercise by the Commission of any of its functions. The example of Hastings and St Leonards Foreshore Charitable Trust (Regn No 1105649) is in point.

    Conclusion: The scheme solution Whatever other points were, or might have been, taken, the CFA by its judgment dated 18 May 2015, concluded that the Foundation held Mrs Wang’s Estate as a trustee subject to the powers under clause 4 of the 2002 Will, rather than receiving it as an unconditional absolute gift. It would therefore hold the estate as a trustee under the supervision of an independent managing organisation instead of receiving it as an absolute gift The judgment has thus clarified the proper interpretation of the 2002 Will ( “the Will”) at law, and provided a legal basis and clear guidance for the future implementation of the Will through a scheme. The beneficial ownership argument thus became, or was grounded like, a dead duck in the Hong Kong jurisdiction.

    Third time unlucky After two adverse decisions on construction the proverbial saying, or superstition, that a third attempt is more likely to succeed may be no more than a vain echo of the triple injunction to try, try and try again. Occasionally success has been achieved on a third attempt. But even two unsuccessful attempts, especially one on an appeal with no redeeming dissentient voice, are likely to set the scene for a forensic kick down the stairs on a third attempt. The temptation at appellate level with such a comprehensive failure rate is perhaps understandable :to lean against any but the most convincing arguments.

    Scheme to be brought in The effect of the CFA judgment was outlined in the discussion paper of 20 July 2015 put before the legislative Council Panel on Administration of Justice and Legal Services (LC Paper No CB(4) 1313/14-15(0) to which two Annexes are appended.

    The purport and effect of the CFA judgment was that a scheme should be prepared and submitted to the High Court for approval after consultation between the Foundation’s Board of governors and SJ as the guardian of the public interest. The scheme should among others set out the establishment of a supervisory “managing organisation” and the detailed working out of the arrangements for the Chinese prize mentioned in the Will.

    The CFI has original jurisdiction to impose (upon application or otherwise) a scheme of administration on a charitable trust and will exercise such jurisdiction whenever the court is satisfied that the scheme will secure the better administration of the charitable trust. The Department of Justice (DoJ) will continue to liaise with the Foundation and the interim administrators in taking follow up actions having regard to the guidance given by the CFA on the various aspects ,and will also seek the Court’s further directions when necessary. The DoJ will also continue its close monitoring of the interim administrators’ work in managing and preserving the estate and will take up such follow-up actions as may be appropriate with a view to protecting and safeguarding the interest of the charity.

    Costs order

    The Foundation sought to claim their costs incurred in pursuing the case in the Court of First Instance and in each of the two further appeals, namely to the Court of Appeal and to the Court of Final Appeal. Lord Walker of Gestingthorpe made it clear that the unanimous decision of the judges in the Final Court of Appeal was that extravagant expenditure of charity funds should not be encouraged merely because they are large. So no part of the Foundation’s costs of the appeal to the Final Court of Appeal could be ordered to be paid out of the Wang estate. This outcome is to be contrasted with the position where the court in its discretion forms the view that the proceedings might be described as proceedings by the trustees for the interpretation of the charity’s constitution and that they come into one of the categories outlined in Re Buckton (1907)27 not being hostile litigation28 (which this case does not on its face seem to be ). An official and fuller report of the argument and reasons for costs orders has not as yet been forthcoming.

    The submission by the Secretary for Justice was that the Foundation should pay the other parties’ costs because the real purpose of the appeal was to promote the position of the Foundations’ governors and not to benefit charity. The conduct of the governors was not however stigmatised as evidencing bad faith .

    TERRORISM COUNTER-TERRORISM AND CHARITIES

    In Chapter 60 of the 2014 Supplement to Picarda Law and Practice relating to Charities (4th edn) at ppp219-22 and 222-224 the writer briefly described, and to some extent commented upon, the latest literature and Clive Cutbill’s contribution on terrorist financing in Cutbill International Charitable Giving referred to in the discussion of money laundering terrorism and charities generated since 2010. This is a rapidly expanding subject as is the subject of terrorism, counter-terrorism measures and violent extremism. The Counter-Terrorism and Security Act 2015 was passed on 12 February 2015 when the Act was given Royal Assent and came into force as law on the following day with the exception of certain delayed provisions covered by the Act itself 29or regulations made under it.

    The Terrorism Assets Freezing &c Act 2010 and the Terrorism Prevention and Investigation Measures (TPIMs) Act 2011 together with the earlier Terrorism Acts 2000 and 2006 are currently within the remit of Mr David Anderson QC who succeeded to the post of Independent Reviewer of Terrorism in February 2011.30 His main task is currently to review and report annually to the Home Secretary or Treasury on the operation of the aforementioned four statutes, with the additional task of reviewing the deprivation of citizenship on national security grounds under the Immigration Act 2014. He has also given evidence to the Joint Committee on the Protection of Charities Bill and produced four previous annual reports31 other than the fifth report next referred to.

    In amplification of the literature and as a prelude to comments on the Fifth Report of David Anderson QC the independent reviewer of Terrorism Legislation here are several apposite reminders of Charity Commission guidance to be borne in mind.

    The first is OG 410 Charities and Terrorism (2012, last reviewed 31 December 2013)32 . Section E of this guidance gives an overview of possible criminal offences under the Terrorism Acts 2000 and 2006 and sets out the Commission’s position on charities and terrorism, explaining how a charity might be abused for terrorist purposes and trustees’ duties to mitigate this risk and to report any concerns or incidents to the Commission. Section C advises on how to handle cases where there are allegations or suspicions of terrorist involvement or links and associations between a charity and terrorist activity.
    Next comes the Charity Commission guidance Charities and terrorism Compliance toolkit chapter 1 (1 December 2012) which after an initial summary of 7 pages breaks down into 11 Modules. The eleven Modules are (1) A Summary of what this chapter is about and how to use it 2pp (2) Background information on Commission’s and UK Government’s Counter Terrorism strategy (3pp) (3) How might a charity be abused for terrorist purposes 3pp (4) Counter-terrorist organisation overview 2pp (5) Proscribed organisations 8pp (6) Designated individuals and entities 11 pp (7) Terrorist financing 4pp (8) Charity law duties and responsibilities 3pp (9) reporting requirements 2pp (1) International dimension 5pp (11) External sources further information 15pp.

    Next comes ‘Advice for Charities and the Public: Safer giving (1 June 2013 ) whose 10 tips are set out below
    Safer giving Top 10 tips from the Charity Commission to make sure donors give safely:

    1.Before giving, check the charity’s name and registration number against the online charity search tool: Find a charity - register of charities.
    2..Fundraisers require a licence from the local authority (or the police in London) to collect in a public place. Check that they have this. If the collection is in a privately owned place, check that they have the owner’s permission.
    3.When approached by collectors, check whether they are wearing a proper ID badge and that any collection tin is sealed.
    4.If in doubt, ask the collector for more information - a genuine fundraiser should be happy to answer questions and explain more about the work of the charity.
    5.Genuine fundraising materials should feature the charity’s name, registered name and a landline contact number. Be wary of those that list only a mobile number.
    6. Make sure when you give to radio and television appeals that the process is secure. Ofcom lists the rules for radio and television charity appeals on its website: Licensing - Ofcom website.
    7. Take care when responding to emails or clicking links to a charity’s website to ensure that they are genuine. Instead, search online for your chosen charity to check you have the right web address. For further guidance see: Guidance for donors - Get Safe Online.
    8. Carefully review collection bags for clothing and household goods to er they are from a genuine charity.
    9. After making these checks, if you think that a collection or appeal is not legitimate, report it to Action Fraud on 0300 123 2040 and inform the Charity Commission: Action Fraud - Police.
    10.Don’t be pressurised to give to a collection immediately. If in any doubt, donate directly to the charity.

     

    CC Toolkit How to safeguard your charity from terrorism, fraud and other abuse comprises five Chapters each of which contains important cross references to other resources requiring due attention .
    Guidance, tools and other resources to help charity trustees put in place good standards of governance and accountability so as to safeguard their charities from terrorism, fraud and other forms of abuse.
    This toolkit is designed to give every charity trustee the knowledge and tools needed to manage risks and protect the charity from harm.

    • Chapter 1 Advice and information on key aspects of the UK’s counter-terrorism legislation and how it may affect charities and their work. Charities and terrorism1 December 2012
    • Chapter 2 Sets out trustees’ legal responsibility to carry out due diligence checks on donors, beneficiaries and local partners and how to monitor end use of funds. Charity Commission Guidance Charities: due diligence checks and monitoring end use of funds 3 January 2011
    • Chapter 3 Helps trustees and other charity managers to be aware of the risks, to recognise some of the most common types of fraudulent activity and to devise ways to prevent fraud occurring. CC Guidance Charities: fraud and financial crime 3 April 2011
    • Chapter 4 Practical advice for trustees on risk management factors and the need for appropriate financial controls and audit trails. CC Guidance Charities: holding, moving and receiving funds safely 5 January 2011
    • Chapter 5 Guidance on how charity trustees, staff and volunteers can protect their charities from abuse by anyone encouraging or condoning extremism, terrorism or illegal activity. Charity Commission Guidance Protecting charities from abuse for extremist purposes 5 January 2011.

    David Anderson QC Terrorism Prevention and Investigation Measures in 2014 :Third Report of the Independent reviewer on the Operation of the Terrorism Prevention and Investigations Measures Act 2011

    This report by the independent reviewer David Anderson QC contains a summary of the current terrorist threat (chap 2) and of the way in which the various special terrorism powers (stop and search, port powers, arrest, detention and prosecution) were used during 2014 and in some cases more recently (chaps 3-8). He refers to the fact that a number of Islamist plots were thwarted in Great Britain and records that terrorist violence remains an unfortunate fact of life in parts of Northern Ireland, where some plots were carried out but police activity has saved lives. Arrests and charges are running at a very high level. Port powers, recently considered by the Supreme Court in the case of Beghal, were used less extensively but more effectively during the period under review. There were multiple convictions of both Islamist and extreme right-wing terrorists in England.

    Countering terrorism forms the subject of chapter 8. The immediately following chapter (chapter 9) foreshadows the steps that Government is to take to counter extremism. The Government has defined extremism as “vocal or active opposition to fundamental British values”: it thus extends to a range of activity that is not caught by the current law as terrorism, incitement to violence, stirring up hatred or abuse. Plainly the Government should have a counter-extremism strategy, details of which it had been indicated would be announced later in the year. But plans to extend the legal impediments to free speech, by way of a projected Counter-Extremism Bill, were perceived by the independent reviewer to be likely to be controversial. Basing himself on his experience as the reviewer of terrorism legislation, David Anderson QC identified some of the issues that Parliament in his view would need to look out for when the Counter-Extremism Bill – which will be aimed at suppressing “extremist activity”, including by “extremist disruption orders” – comes before Parliament in this session. And he enters a note of considerable caution:

    “9.30 These issues matter because they concern the scope of UK discrimination, hate speech and public order laws, the limit that the state may place on some of our most basic freedoms, the proper limits of surveillance, and the acceptability of imposing suppressive measures without the protections of the criminal law. If the wrong decisions are taken, the new law risks provoking a backlash in affected communities, hardening perceptions of an illiberal or Islamophobic approach, alienating those whose integration into British society is already fragile and playing into the hands of those who, by peddling a grievance agenda, seek to drive people further towards extremism “.

    The same note of caution reflecting the common liberal notions of good citizenship both aspirationally and in practice is to be found in the HPG Working paper produced by the Humanitarian Policy Group at the Overseas Development Institute a (if not the) leading UK independent think tank on international development and humanitarian issues : 33. ]

    Prevent Strategy Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty June 2011 (Cm 8092).34

    The Charity Commission’s counter-terrorism work (Policy Paper Published 23 May 2013) explains how terrorist abuse arises

    Prefatory words The Commission makes it clear that any terrorist abuse of charities is completely unacceptable and corrodes public confidence in charities. Charities therefore need to ensure they are not at risk. The Commission’s Counter-terrorism strategy further outlines its role and approach for dealing with concerns about the abuse of charities for terrorist purposes and summarises its strategy for tackling the risk of terrorist abuse in the charitable sector. The Commission has updated the strategy to take into account the findings of the government’s review of Prevent which is not without its critics most notably perhaps the Muslim Council of Britain (MCB) . However, the strategy still has a four strand approach to protecting charities from the risk of terrorist abuse:

    • awareness: raising awareness in the sector to build on charities’ existing safeguards
    • oversight and supervision: proactive monitoring of the sector, analysing trends and profiling risks and vulnerabilities
    • co-operation: strengthening partnerships with government regulators and enforcement agencies nationally and internationally
    • intervention: dealing effectively and robustly when abuse, or the risk of abuse, is apparent

    The Commission’s Compliance Toolkit sets out how those running the charity can safeguard their charity from terrorism, fraud and other forms of abuse. Ways in which those managing the charity should handle the charity’s money safely are: Part of: Charity money, tax and accounts and Setting up and running a charity (23 May 2013)

    There is also detailed guidance for charities whose work is either wholly or partly international or overseas based.

    Counter Extremism Strategy The most recent addition to the Strategy is the Counter Extremism Strategy (Cm 9148) issued by the Counter Extremism Directorate (Home Office 19 October 2015). It has important things to say about the measures it envisages as required to counter extremism. It involves countering extremist ideology: extreme right wing neo-Nazi groups promoting Islamophobic or anti-semitic views, and ISIL It was followed very shortly after its emergence by the publication on 4 November 2015 of the Investigatory Powers Bill 35which has already created something of a stir and will need careful scrutiny both by Parliament by regulators and by other interested parties. The Independent Reviewer of terrorism has already warned of a possible backlash if inappropriate measures give rise to resentment and grievance.36

    On Tuesday 27 October 2015, the Muslim Council of Britain (MCB) Deputy Secretary General Harun Khan, and Assistant Secretary Generals Ameena Blake and Miqdaad Versi gave evidence to the House of Commons Home Affairs Select Committee on the impact of the ‪Prevent‬ strategy and the proposed Counter-Extremism Bill on Muslim communities, as well as discussing proposed approaches to tackle ‪Islamophobia. In his subsequent address to the MCB, ‘Extremism and Terrorism –The New Context’ David Anderson QC paid tribute to the quite heavy reliance he had placed on the contributions made by the MCB and singled out their representatives’ evidence to the House of Commons Home Affairs Select Committee as “doing the Muslim community proud”. It was cruel twist that just sixteen days later the extremist violence of the Paris massacre was unleashed on Friday 13 November 2015.‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬

    Pakistan Mission to United Nations To like effect is the Statement on 21 April 2015 by Ambassador Dr. Maleeha Lodhi, Permanent Representative of Pakistan, to the United Nations at the High-Level Thematic Debate of the General Assembly37 . In that statement Dr Lodhi focused on building resilience in communities and societies which is identified as essential for an effective strategy. This means, she suggested, mobilizing the support and trust of local communities to evolve a successful strategy in countering violent extremism (CVE strategy).

    Education and schools Education and educational programmes have a key role to play in this respect. But for maximum effect they must be nationally organised and led. Curriculum lies at the heart of educational efforts and should therefore focus on promoting tolerance, harmony, reconciliation and understanding among civilizations and respect for other faiths should be inculcated from the very start. This more than the probably misplaced misdirected and modish emphasis on coaching in civic rights as opposed to a focus on civic duties and responsibilities is what underlies, and indeed constitutes, true good citizenship. This has traditionally been the charitable aspiration and aim of independent schools, of the scouting movement, of associations loyally promoting local good causes and of the monuments to great inspirational men or women , as the writer has consistently pointed out and as long standing precedent has established38 . Communal loyalty is encouraged by communal cooperation and is capable of being advanced by a spirit of giving rather than taking or demanding.

    On 1 July 2015, as part of its remit under the Counter Terrorism and Security Act 2015 the Department for Education (DfE) first published its departmental advice Department of Education Guidance The Prevent Duty. This document explains what schools and childcare providers can do to protect children and young people from the risk of radicalisation. The Department for Education has issued advice to help schools and childcare providers understand the implications of the Prevent duty.
    This departmental advice will:
    • Explain what the Prevent duty means for schools and childcare providers
    • Make clear what schools and childcare providers should do to demonstrate compliance with the duty
    The Prevent duty cited in the Counter Terrorism and Security Act 2015 refers to the duty on specified authorities to have due regard to the need to prevent people from being drawn into terrorism.
    Schools and childcare providers are two of these specified authorities and from 1 July 2015 they are subject to this duty under section 26 of the Act.
    This departmental advice complements the statutory guidance and helps schools and childcare providers think about what they can do to protect children from the risk of radicalisation.39
    This advice is specifically aimed at a number of different types of educational institutions including independent schools. Intended readers are :
    • Governing bodies, school leaders and school staff in maintained schools
    • Non-maintained special schools, proprietors of independent schools (including free schools and academies), alternative provision academies and 16-19 academies
    • Management committees and staff in pupil referral units
    • Proprietors, managers and staff in registered childcare settings
    On 1 July 2015 the DfE also published a Guide to help schools understand the techniques terrorist groups use on social media.
    Two months later on 2 September 2015, the DfE shared links to more advice and resources that schools can use to protect their pupils from radicalisation. To access these resources one needs to register with the TES website
    DfE also set up a helpline that schools and other organisations working with children can contact if they have concerns about radicalisation.40
    A parent or other relevant person concerned about extremism in a school or organisation that works with children, or if such a person thinks a child might be at risk of extremism, is enjoined to contact the DfE helpline.

    Open Monday to Friday from 9am to 6pm (excluding bank holidays).
    The role of religious leaders is vital in fostering community resilience. They can help to counter and de-legitimize acts of violence, regardless of justifications or motivations. Religious leaders and scholars need to issue, as has happened in Pakistan, fatwas – religious edicts – to counter extremist ideology and actions. Youth clubs sport and recreation are likewise focuses for communal effort.

    Details in summary of Counter extremism strategy (October 2015) The document runs to some 44 pages thirty nine of which are in double columns. It analyses the promotion of hatred and division paras 11 -15 drawing attention in paragraph 9 to the harm done to society in general and by the radicalisation of vulnerable people, through sophisticated use of the social media particularly the internet with justifications and glorifications of violence, but also encouraging anti-cohesive isolation and unequal treatment under alternative systems of law that are inconsistent with UK law.

    It notes the presence of extremism in schools, universities, local authorities, charities, the National Health Service and prisons. Then it outlines a strategic response in terms of countering extremist ideology, by the means of building a partnership with all those opposed to extremism, disrupting extremists, and building more cohesive communities. In all of these initiatives schools, universities and other higher education institutions, as in the case of local authorities, charities, prisons and faith institutions will have a role to play41. There is to be an independent review to understand the extent to which Sharia law is being misused or applied in a way that is incompatible with the law42. In this connection a synopsis of key elements of Islamist thought and of the ideology of ISIL is set out in the October 2015 Strategy43 . And there is also to be a full review to ensure that all institutions are safeguarded against the risk posed by entryism, in other words where extremists consciously seek to gain or take over positions of influence to enable them, once ensconced, to promote their own extremist anti- civic views.

    The Home Office is to have a lead responsibility through a new directorate to co-ordinate wider aspects of counter-extremism work across government, working with civil society industry and international partners. The Government has commissioned Louise Casey to conduct a review of how opportunity and integration can be boosted in Britain’s most isolated communities and this report will inform a major new Cohesive Communities Programme in 2016 supporting central funding in support of local intervention targeted at local needs.44 Meanwhile according to a speech made on 19 January 2016 by Rt Hon Nicky Morgan MP a new website, Educate against Hate, is to be opened has been opened. Parents and teachers will be able to access help to protect children from radical views via a landmark as part of a drive to protect children from the “spell of twisted ideologies”. It will be interesting to see how, particularly in independent boarding schools, this will work out and the extent to which internet access will and can sensibly be monitored.

    THINK TANKS POLITICS AND CHARITY

    Political events of recent times have persuaded a sizeable quantity of critics that while the position of Islamophobia needs to be sternly policed the promotion of jihad and sharia law in relation to good citizenship and the prevention of the use of charities as conduits for terrorism already considered by one of the Montreal conference contributors45 need analysis and should prompt serious investigative questions. There are discrepant views on this.

    The huge and perennial published comment on, and propaganda in favour of, advocacy and campaigning and awareness raising continues to grow46 with various paraded justifications: a posited need for internal coherence of public benefit using the decision in the R (Independent Schools Council) v Charity Commission for England and Wales [2012] Ch 214 at 244 as a tool or that and At all events the issue has now surfaced in The Human Dignity Trust case decided in the First-tier Tribunal in England and Wales and in the Greenpeace New Zealand case in the New Zealand Supreme Court. Earlier in April fascinating litigation generated by the determination of the registered charity British Humanist Association with adjusted objects designed to allow campaigning for faith schools to be forced to change their admission procedures resulted in an interesting decision. The school was not an Islamic faith school but the oversubscribed Catholic London Oratory School where the children of Prime Minister Tony Blair and the former Deputy Prime Minister Nick Clegg went.47

    No apology is made here for the writer deciding to go over ground which has been traversed in earlier writings of his either in text book form or in other legal journal literature. Since 2010, despite occasional citation in the courts over the Commonwealth and in England the coverage of public benefit in the fields of formal education, political education and the proper treatment of religion in the latest edition needs to be contrasted with the scripts of writers and campaigners who espouse the need for increasing advocacy and campaigning and a greater role for politics in charity because, political enthusiasts contend, “charity is at the heart of politics”.48 When an absence of matching enthusiasm or reluctance to take a political line is encountered or an instinctive diffidence in the merit of mixing charity and politics surfaces the near automatic and somewhat condescending reaction of committed radical campaigners is that the solution lies in education advocacy or awareness raising to deal with out of date, non-twenty first century, values. The dissemination of propaganda is one provoking instinctual dissociative and negative reactions associated with the Orwellian message about truth and propaganda.

    A distinctive aspect of the radical campaigners’ presentation of their views on the political purposes doctrine is their seemingly studious avoidance of controverting, let alone mentioning, the possibly inconvenient views of academic and text book writers and practising lawyers who defend the common law rule against the charges made against it .49

    The rule against politics political activism, campaigning advocacy awareness raising and public benefit

    Some form of summary of the thrust of that part of the writer’s main text and Supplement dealing with those topics50 is called for as a prelude to looking at the important work, mainly at theoretical level ,that has emerged and is continuing to emerge from those bent on changing the application and incidents of the rule against politics . Given that some enthusiasts for political activism are pressing for further licence to intensify such activism, even and especially when that activism is controversial as is often the case, counterarguments surely deserve deployment so that they too may be coherently analysed. In several cases the controversiality of the subject matter has been viewed by judges as justifying a conclusion of non-charitability.51 Some critics claim that public benefit is implicitly inherent in some newly recognised “public goods” so as not even to necessitate investigation or proof. Recent discussions have emanated from Australia Canada and the British Isles on the distinction between charity and politics52, prompted by recent antipodean decisions. The theme is one which was fully and expertly explored by Professor LA (“Lee”) Sheridan several decades ago before the advent of the antipodean cases albeit in a different societal context and time warp53, and more recently by Professor Gino Dal Pont of the University of Tasmania and Dr Margaret Synge of the University of Cardiff.54

    Non theistic religions and polytheism were let in under the wire fence to the new list of charitable purposes in what was the Charities Act 2006 but is now consolidated into the 2011. This happened at a rather late stage55 . So too at a similar late stage was hurriedly ushered in the new object of equality and diversity.56

    Both these debutante charitable purposes were presented with accompanying announcements and justifications. With the passage of time further comments have emerged and some of their provisions of the Act on topics of a political nature have naturally engaged the attention of contributors to two publications from the Cambridge University Press57 who have devoted themselves to the elucidations offered by and the problems posed by the decisions in Aid/Watch case in the Australian High Court and the phenomenon of its recent adoption in New Zealand.

    Peace, conflict resolution and Greenpeace in our time: when human rights are political. A new composite many headed (polycephalous) statutory provision made its debut belatedly in the charitable reforms now consolidated in the Charities Act 2011. It did not on its first appearance make much of an impression.

    Advancement of human rights

    The advancement of human rights is an acknowledged good in many European systems58. More importantly it is part of a list of charitable purposes in section 3 of the Charities Act 2011 but it is required to pass the test of public benefit .

    British Humanist Association

    One of the conspicuous aspirants to charity status was the British Humanist Association whose agenda had always included campaigning59 . In October 2011 the British Humanist Association succeeded in getting the following revised objects registered with the Charity Commission

    4.The Charity’s objects (the Objects ) are specifically restricted to the following
    . 4.1.1. The advancement of Humanism, namely a non-religious ethical lifestance the essential elements of which are a commitment to human wellbeing and a reliance on reason, experience and a naturalistic view of the world;60
    4.1.2. The advancement of education and in particular the study of and the dissemination of knowledge about humanism and about the arts and science as they relate to humanism;
    4.1.3. The promotion of equality and non-discrimination and the protection of human rights as defined in international instruments to which the United Kingdom is party, in each case in particular as relates to religion and belief;
    4. 1.4 The promotion of understanding between people holding religious and non-religious beliefs so as to advance harmonious cooperation in society.

    When and to what extent this object should encompass high energy concentration on human rights litigation remains an unresolved question in this country, at any rate so far as decision in a court of record is concerned. A decision of the First-tier Tribunal(Charity) in England and Wales namely the Human Dignity Trust v Charity Commission has, as we shall see in a moment, suggested that it may encompass litigating though confining itself to the very restricted compass of the facts and submissions in that particular case. Together with a New Zealand Supreme Court case they seem in tandem to constitute further detractions from the absolutism of the rule against politics in relation to purposes. A report of a case in the former emerged on 9 July 2014; and then, just about four weeks later, there appeared on 6 August 2014 a report on the decision of the New Zealand Supreme Court in the Greenpeace litigation

    Human Dignity Trust case

    Both politics and human rights lay at the heart of the case of The Human Dignity Trust v Charity Commission for England and Wales61 . The Charity Commission had refused registration to the Trust (HDT) on the grounds that its objects were too vague and uncertain; that it was not established for charitable purposes only; and further that it had a political purpose, namely that of seeking to change the law of foreign states which -precludes charitable status, adding for good measure that there was uncertainty as to what human rights meant in English and Welsh charity law. The First-tier Tribunal concluded in a judgment that gratifyingly recites the arguments, that the particular purposes of Human Dignity Trust were set out with sufficient clarity in its objects clause. One such object was “to promote and protect human rights (as set out in the Universal Declaration of Human Rights and subsequent United Nations conventions and declarations throughout the world” which was held to be charitable. With that clear conclusion there was no room for the admission of any further extrinsic evidence. Secondly there was sufficient clarity in the clause directed, “to promote the sound administration of the law”. The conduct of the very particular form of litigation supported and engaged in by the HDT was held to be an acceptable means of advancing the charitable purpose of promoting and protecting human rights as particularised, and of promoting the sound administration of the law. Judge Alison McKenna in the First-tier Tribunal confronted with these important legal points was at pains to note that the decision was confined to its own facts and did not establish a legal precedent. Mindful of the criticisms made of the failure of the Upper Tribunal in the ISC case to set out the submissions of the parties with sufficient detail and clarity a painstaking analysis and exposition of the arguments and conclusions on evidence and law emerged. In outline the progression of the successful argument was that

    • HDT was concerned with the promotion of human rights by establishing whether particular laws were valid through a process of constitutional interpretation - this process fell entirely outside the categories of activity held to be political (and thus not charitable) in McGovern;
    • those categories should not be extended to include it, because a process of constitutional litigation did not offend the separation of powers in a constitutional (as opposed to Parliamentary) democracy;
    • HDT was engaged in upholding the law, not changing it; and
    • HDT's purposes were for the public benefit, because the purported criminalisation of relevant conduct represented a serious breach of international human rights norms. There was a public benefit in seeking to interpret, clarify and protect superior constitutional rights
    Condescending to a little more detail and particularity one may identify a dozen main holdings inferences or salient conclusions to wit
    • (1) that public benefit element under each statutorily listed head of charity may differ and vary in nature and quantum from time to time as has happened in developments to date
    • (2) that there was no uncertainty or lack of clarity in the expressed objects or purposes which were (a) “to promote and protect human rights.. throughout the world “ and (b) “to promote the sound administration of the law”;
    • (3) that the term “human rights” in s 3(1) (h) in the Charities Act 2011 had no particular meaning under charity law and thus fell to be construed according to its ordinary meaning which the tribunal accepted was not restricted to human rights accepted by English law: it was in the words of, and as outlined by, Professor Emerita Christine Chinkin of the LSE in her evidence “an evolving concept applied to the core civil and political, economic and social rights contained in the widely recognised and adopted human rights”: see paras [41-45];
    • (4) that given that the objects of HDT properly construed fell within section 3 (1)(h), the rights to human dignity to be free from inhuman or degrading treatment or punishment to personal and social development and to privacy fell within the meaning of human rights see paras 53-54;
    • (5) that the newly coined term “strategic litigation” can be distinguished from hostile or “enforcing” litigation;
    • (6) that the conduct of “strategic” litigation was not to be classified as a central purpose of HDT but only as a proper and acceptable means of advancing the sound administration62 of the law that it was and was not the subject of authority precluding FTT from classifying it as such: paras 64-65;
    • (7) that it is for the public benefit of the community in England and Wales as well as in the country where a human contravention occurred for the human rights standards recognised by the international community to be promoted and protected: paras 76,78-79;
    • (8) that HDT was concerned with the promotion of human rights by establishing whether particular laws were valid through what HDT’s counsel argued was a “process of constitutional interpretation”, a process which fell outside the categories of activity in McGovern v Attorney General [1982] Ch 321 the leading case defining (be it noted in a non-exhaustive way) ‘political purpose’ and took place in a markedly different context which did not offend the separation of powers in the countries involved (McGovern and Reyes (Patrick) v The Queen [2002] 2 AC 235;
    • (9) that upholding human rights by conducting litigation which aimed at securing the interpretation or enforcement of superior constitutional rights in a foreign country which has given effect to was beneficial and for the public benefit;
    • (10) that the advancement of human rights was a description of a charitable purpose for which there was no legal authority
    • (11) that there was a wider benefit to the community at large
    • (12) that it was not in dispute that benefit accrues as identified by the five features identified by Jonathan Cooper in his evidence (para 10 and that there was no evidence adduced that there was any detriment arising from HDT’s activities.

    A legitimate question which charity lawyers must address is whether this case has any controversial elements such as would sabotage the claim to charitable status and the tax advantages that the charity brand confers especially when the laws being challenged are in an overseas jurisdiction.

    A number of public benefit questions arose during the course of the hearing in which Mr. Michael Beloff QC representing HDT the Human Dignity Trust was pitted against Mr. Kenneth Dibble of the Charity Commission. This included investigation as to what was the test for purposes that are carried out outside the United Kingdom and whether conducting litigation of the type undertaken by the Human Dignity Trust was a proper way of advancing human rights and promoting the sound administration of the law. Interestingly, the Tribunal did not accept the claim of the Commission that the charity had to benefit both the UK community and the community in the countries in which it operated. A purpose will generally be charitable if it would be charitable if it were furthered in the UK, provided there are no public policy reasons to prevent it from being charitable – for example if further the objects might prejudice relations between the UK and other countries. Even if it was wrong that the community in the UK did not need to benefit the method of advancing human rights in the present case did, it was held, benefit people in the UK partly because there are global benefits to ensuring that the rights of everyone are upheld. How that follows is not explained.

    Some store was put on the fact that there was no evidence that the activities of the applicant were prejudicial to the interest of the UK. The argument that conducting litigation of the type undertaken by the Human Dignity Trust was not a proper way of advancing human rights because the charity was essentially trying to change the law in other countries and that there was no way of knowing if this produced public benefit was deployed. A court asked to reach conclusions on this point would either have to judge the situation according to English notions of public benefit (which may be inappropriate in the context of a foreign country) or apply local concepts which it would not know.

    Mr. Michael Beloff QC maintained that on the contrary the charity was seeking to uphold the law. He alluded in this regard to a textbook citation of Picarda referring to American cases. It is widely accepted that there is a hierarchy of laws and that where inferior laws conflict with superior constitutional provisions or international legal obligations, then the inferior laws should be set aside.

    Constitutional process By seeking to strike down the inferior laws criminalising same sex conduct the Human Dignity Trust was helping to enforce the provisions of the superior international human rights laws. Accordingly, the dilemma of a court having to decide whether a proposed change in the law was beneficial would never arise. If asked, a court would only need to determine whether it was beneficial to pursue the type of litigation undertaken by the charity. The tribunal accepted Mr. Beloff’s analysis that it was not really appropriate to think of the charity’s work in terms of upholding versus opposing the law. Instead the right analysis was that the charity was engaging in a “constitutional process”. The tribunal also agreed with the charity’s submission that a court would only need to access the benefit of the litigation undertaken by the charity which, in the view of the tribunal, did produce public benefit. The upshot was that the First-tier Tribunal found that because the charity was not seeking to change the law neither its purposes nor its activities were or could be accounted political and litigation was a legitimate way for the charity to further its objects so that the Commission had to register the Human Dignity Trust as a charity. The denial of charitable status for the promotion of political purposes is often criticised by the radically inclined as being illogical and as having anomalous consequences 63. Yet Sir John Mummery who has retired from the English Court of Appeal has argued extracurially in a recent article64 :

    “The stance of the courts is not based on the principles of charity law and its notions of public benefit: it is rooted in fundamental constitutional principles. Once that is properly appreciated it can be seen that the courts could not possibly become involved in adjudication of the merits and demerits of political purposes”.65

    .
    Engaging in litigation The claim that subsidising or even engaging in litigation is a legitimate exercise for a charity to undertake is one which perhaps merits more attention than the inequality of arms in the First–tier Tribunal in the Human Dignity Trust case yielded or was capable of yielding. Courts have in the past been averse to charities litigating66. Litigation in this controversial field may not necessarily succeed and the community’s interest in subsidising through taxes the expenditure and the use of money to support such litigation (even where benignly identified and labelled as “strategic” litigation) may not bear the appearance of being a charitable activity or of being best calculated to promote civic harmony 67 but rather the reverse. Lawyers in other jurisdiction will no doubt form views of their own on this issue and it would be interesting to see how an Islamic human rights lawyer would view the matter. A charity in a domestic forum such as that in England and Wales where the Human Rights Act may be repealed may stand on a different footing from a non-charitable institution in this regard. It is arguable that human dignity in relation to a gay, lesbian, bisexual, transgendered and intersex identity, is best (and more appropriately) protected by the various human rights mechanisms invoked by non-charitable institutions. Those mechanisms may also fall to be analysed for their appropriateness and their potential effect on the dignity of persons confronted by enforcers of the posited norms. The characterisation of the litigation being a “constitutional process” is one with which, as an arguable thin end of the wedge, the Inland Revenue might wish to quarrel at Upper Tribunal level where, arguably, this case with its important points of principle should have gone. The question whether the purpose was a political purpose independently of it being directed to changes in law or policy might be susceptible of plausible argument at that level as a matter of principle given the wide meaning given to the term ‘political’ by the case law68 and the need for the judiciary not to have to decide political questions.

    The arguments deployed by the Commission also conspicuously failed to deploy arguments about the incompatibility of human rights law and norms with Shariah law. The latter appears to take a stern uncompromising view of homosexual practices and gay rights. That hotly debated incompatibility and its potentially divisive consequences appear not to have been investigated, nor made the subject of admissible evidence, nor taken account of, by the Commission. Did the Commission, one wonders, consult the Revenue or outside lawyers on this point? There was no evidence filed to challenge or rebut the evidence given on behalfof Human Dignity Trust nor to support the proposition that local laws against same sex relationships represented deeply embedded cultural views which must be taken into account as possible detriments. In the event the First- tier Tribunal was unable to adjudicate on the matter of benefit and detriment other than by reference to the unchallenged evidence filed on the part of Human Dignity Trust. Nor was there effective challenge either to the validity and correctness of the Trust’s analysis of Slade J ‘s judgment in McGovern or to the proposition that the purpose69 of upholding a controversial law was an exclusively charitable purpose or that the controversial strategic litigation was simply an unobjectionable means of carrying out a purpose characterised as un-political and indeed in the event beneficial, as opposed to being a very purpose of the trust rather than some kind of ancillary means of carrying out a main purpose .

    All of the above necessarily speculative observations stem from a desire to see whether a coherent alternative, or devil’s advocate, argument can be formulated or articulated . It would be interesting to see what view HMRC and promoters of the desirability of respecting Shariah law will take.

    Greenpeace case in the Supreme Court of New Zealand

    The litigation carried on in New Zealand by Greenpeace since the fourth edition of the text of Picarda appeared in November 2010 culminated in the decision at the highest level in Re Greenpeace of New Zealand Incorporated 70. It had been preceded by a first instance hearing before Heath J71 , then by way of an appellate hearing before the New Zealand Court of Appeal72 , culminating in an appeal to the Supreme Court of New Zealand where a three- two majority decision of the Supreme Court resulted. An outline of the litigious history will help the necessary study of the Supreme Court decision

    Back in June 2008 Greenpeace New Zealand applied to the Charities Commission to be registered as a charity. The Charities Commission declined Greenpeace’s application in April 201073. The Commission said that, although the bulk of Greenpeace’s purposes and activities, such as the promotion of the protection and preservation of nature and the environment, were charitable, the promotion of disarmament and peace would not be charitable.

    In December 2010 Greenpeace appealed to the High Court. But in May 2011 the High Court found that Greenpeace should not be able to register as a charity because its nuclear disarmament purposes were independent political purposes and therefore non-charitable74 . In September 2012 Greenpeace took its case to the Court of Appeal. Two months later in November 2012 the Court of Appeal agreed with and upheld the arguments of Greenpeace, and said that the peace and disarmament purposes of Greenpeace were broadly charitable and the Charities Commission (by then called the Charities Services) should consider the application again.

    The Court agreed that political advocacy did not disqualify an organisation from being a charity, as long as it was not a ‘primary purpose’. The Court also said that any activities carried out by a charity that were illegal would preclude that organisation from being a charity. However, in May 2013 Greenpeace took its case to the Supreme Court. It challenged two of the be put on political advocacy, as it is not consistent with New Zealand’s participatory democracy for there to be a general prohibition on participation. In this respect reliance was placed by Greenpeace and by the majority in the Supreme Court on the decision of the High Court of Australia in the seemingly analogous case of Aid/Watch Inc v Commissioner of Taxation75 which the Supreme Court followed.. The organisation also questioned whether the Court was able to judge where public benefit lies around political advocacy,

    The Supreme Court (by a 3-2 majority) allowed the appeal against the Court of Appeal’s determination that a political purpose cannot, ex hypothesi, be a charitable purpose. The majority held that a political purpose exclusion should no longer be applied in New Zealand. A blanket exclusion of political purposes was, they concluded, unnecessary and distracted from the underlying inquiry whether a purpose is of public benefit within the sense the law recognises as charitable. They rejected the conclusion of the Court of Appeal that s 5(3) of the Charities Act enacts a political purpose exclusion with an exemption if political activities are no more than ‘ancillary’. Rather, s 5(3) provides an exemption for non-charitable activities if ancillary. Political advocacy that is not charitable but only ancillary or secondary to an entity’s main charitable is still possible and not a bar to getting “charitable entity” status. It appears from the foregoing that much store was put by the statutory wording of section 5(3) in its statutory context and by the inferences to be drawn, and which the majority drew, from that wording.

    The New Zealand Supreme Court unanimously dismissed the appeal against the Court of Appeal’s determination that purposes or activities that are illegal or unlawful preclude charitable status. The Court held that an illegal purpose is disqualifying and that illegal activity may disqualify an entity from registration when it indicates a purpose which is not charitable even though such activity would not justify removal from the register of charities under the statute. It was a ” matter of fact and degree” whether any illegal or unlawful activity (including isolated breaches of the law and other unlawful activities not deliberately undertaken or coordinated) disqualifies an entity from obtaining registration in any particular case .The position of an already registered charity for the advancement of human rights ( as opposed to a non-charitable entity unencumbered by charity law restrictions ) which starts campaigns to help solicit funds for carrying out litigation abroad may, or may not perhaps, be the same.

    In all of the above findings there are enough qualifications and reservations to indicate that despite optimistic media celebration of the decision in which overworked metaphors of sea change, landmark, and watershed, are paraded, the decision in connection with the law of political purposes represents but a partial retreat from an absolute bar. What the decision certainly does not do is to redefine all political advocacy as a charitable purpose under section 5 of the New Zealand Charities Act 2005. The Supreme Court does however confirm that a charitable purpose generally involves a “tangible public benefit”. In consequence, so long as public benefit is a continuing requisite in respect of new charitable purposes, it will be difficult for an organisation to show that a stand alone promotion of an idea or a cause is a charitable purpose.

    As a result of the Supreme Court's decision, the charitable status of the objects of Greenpeace` have been referred back to the Charities Board now under the aegis of the DIA . The continuing problem confronting Greenpeace is that promoting 'nuclear disarmament and peace' is like promoting an idea or abstraction. It is or may be harder for them to show charitable purpose as readily as someone who can show tangible good like housing the homeless. The way in which they promote nuclear disarmament is as important as the end itself and both of these aspects will no doubt attract the keen attention of the Board when it comes to reassess Greenpeace's purposes.

    There is a thoughtful analysis of the Supreme Court case that appeared in April 201576. It highlights the majority view that when presented with a particular purpose a decision maker should continue in the ordinary way whether the pursuit and achievement of the purpose will generate public benefit according to the principles embedded in the public benefit test. But, as Harding points out, the ways in which the pursuit of a political purpose may be pursued as articulated by the majority were vague and cryptic in connection with advocacy and in the case of matters of very considerable controversy will militate against a finding of public benefit.

    POLITICAL INITIATIVES AND ACTIVISM AND PUBLIC POLICY CONSIDERATIONS

    Two agitational phenomena have surfaced in the years following the Twin Towers disaster in 2001 often referred to as 9/11. These are the intensification of calls for more politics in charity and the growing political dissatisfaction of disenchanted immigrants to Europe with what they perceive to be Islamophobia that has in turn (it is alleged) a tendency to lead to extreme Islam reactions. Questions of public policy arise as well as the need to tread carefully about sensitivities.
    It is suggested that there are several arguments that invite response on a legal rather than, or as opposed to, a philosophical or socio-political basis.

    Swaying public opinion as an example of political activity In summary it is well established that the term political as used in the law of charities to describe objects or activities is not confined to the party political although there are tendentious assumptions made that it is only party political objects that are non-charitable. It is convenient first to underline that in this country’s case law alone the following have been held political: (1) furthering the interests of any political party 77(2) advocating or opposing any change in the law policy or administrative practice of this country78 ,. (3) seeking to bring about changes in the law of another country79 ; (4) seeking to bring about a reversal of government policy or of particular decisions of governmental authorities in a foreign country80 .; (5) the promotion of peace, international understanding or friendship between groups (except in the interests of racial and religious harmony within the nation which is now Webb v O’Doherty (1991) Times 11 februaryrecognised as a charitable purpose81 ) , the elimination of war82 or the cessation of a particular war , and (6) lastly efforts or attempts to sway public opinion on controversial social issues testified by cases that are all too often overlooked. 83

    Activities which are designed to sway public opinion on controversial social issues are not charitable but are rather political in the sense understood by the law. As often as not, such activities involve the dissemination of literature of a predominantly tendentious or polemical character. And most attempts to inculcate an attitude of mind tends to abandon objectivity in favour of partial propaganda. By embrangling itself with, or launching itself into, controversy over divisive social issues, a charity runs the risk of alienating sections of the public and giving charity a bad name. It does not conduce to civic harmony in mixed race communities and groupings with different religious and cultural backgrounds . This, probably more than any of the other articulated reasons is perhaps the most compelling justification for a rule against politics. Clothing the novel advocacy of divisive social issues with the respectable garb of charity is calculated to cause resentment on the part of those including donors who oppose the relevant advocacy, its exploitation of the charity brand, and its subsidy out of tax payers’ pockets, in turn causing societal resentments leading to discord or disharmony. Such advocacy should be deployed by non-charitable institutions and entities a course adopted in the Global Warming Policy Foundation case . Freedom for a non-charitable political advocacy at a non charitable organisation’s expense is one thing: the freedom for a charity to campaign in a highly charged politically controversial way at the expense of other taxpayers is another. It is not consonant with the spirit and intendment of the case law.

    Politics through pseudo-educational think tanks,hubs, focus groups research organisations or entities described as educational or religious or communitarian are thus examples of purposes that are not exclusively charitable.

    Despite the very detailed criticism of Professor Luxton and others the NCVO has made submissions lauding the new CC9 (2008) and looks to its enhancement after the implications of the Aid/Watch decision have been absorbed. After favourable debate further “liberalisation” will no doubt be called for by the campaigning advocacy and awareness raising groups including the Campaign for Social Science, now a registered charity84 and presumably ready to stand shoulder to shoulder with the campaigning Sheila McKechnie Foundation the Directory of Social Change and the Human Dignity Trust the British Humanist Association and the National Secular Society . The Hodgson Review dodges this issue. But it is important that attention should be paid to it by The Public Administration Select Committee and Parliament itself.

    The alleged but strongly disputed “reversal” of the presumption of public benefit in the first three heads in Pemsel to require public benefit to be proved raises the paradox that public benefit of a political activity may need equally to be proved. Under the existing law merely ancillary political activities or ancillary expenditure thereon are allowed. But once the quantum of activity is identified as controversial it is more likely than not to become, or to be treated as, a purpose and an objectionable and non-charitable one at that. This is because its very nature proclaims that it lacks the necessary public benefit under the case law. There in the case law not merely party politics are forbidden but aggressive and controversial single issue politics too. The positing of attenuation of the rule against politics to a rule simply to avoid party politics is a figment of wishful thinking and is far too narrow and inconsistent with the wide spread common law authorities which have set their face against controversial politicking given its divisive anti-social propensities. There is plentiful authority round the Commonwealth too illustrating this88 ,as well as the powerful domestic authority of McGovern v AG86 corroborated by Southwood v AG 87and Re Bushnell88 and Re Hopkinson89 ,the last two being cases on promoting Socialist purposes in the National Health Service and particularly in point on single issue politics. It is difficult to see how this clear line of authority is capable of serious rebuttal. The test laid down in McGovern has found favour and been endorsed in a number of Federal Court of Appeal decisions in Canada The decision of the Canadian Federal Court of Appeal NDG Neighbourhood Association v Revenue Canada Taxation Department (1988) 88 DTC 5279 needs to be considered .

    Charity lawyers may rightly raise their eyebrows about some of the politicking that has gone on in the past under the previous Governments of Labour whether under Mr Blair or Mr Brown and even by the Liberal Democrat Conservative Coalition now unexpectedly replaced by a Conservative government . But they may also shake their heads about the abandonment of traditional standards and also over complaints made by critics of charities like The Atlantic Bridge Reform90 , and New Schools Network even though the latter was exonerated91. The political stance of the NCVO since 1993 on the campaigning issue and Education Review Group since 2003 also seem less eleemosynary and more controversial tendentious and political than settled law in this country would admit.

    Over-lapping or quasi-incestuous connection between political campaigning groups and ‘educational’ research groups

    In the Independent Schools Council case it was odd, if not startling, that the Charity Commission allowed and may well have encouraged and appointed the Education Review Group (a self styled independent group) now interestingly departed from the scene to make, during its short agitational lifetime belated further representations after the Consultation period had closed. Given that history, it could, one supposes, hardly have objected to the intervention of the ERG and of course it did not. The latter body actually contained a group of vigorous hyperactive anti- independent schools campaigners (like the NCVO which under Stuart Etherington had been hostile to them since 1993) and focussed on promoting state education and getting rid of academies free schools and anything but state schools and exhibiting a visceral dislike of selection by ability.

    A collection of energetic progressive ideologues have nested in many other charities and campaign groups sometimes wearing the cap of educational “researcher” in an educational research body, registered as a charity, and sometimes that of an overtly non-charitable campaigning group member. These are not confined to just one side of political divide or to any shade or part of the political system92. There are right of centre think tanks and research bodies too with links to Conservative party politicians that have been classified as non charitable or carrying out non-charitable activities such as the (in the event) non-charitable Margaret Thatcher Foundation93 and the now defunct Atlantic Bridge. An even more recent example is Lord Lawson of Blaby’s Global Warming Policy Foundation where the Charity Commission expressed its conclusion in the following terms:

    “The Commission found that taken as a whole, it was difficult not to form the conclusion that the publications and postings on the charity’s website promoted a particular position on global warming. The website could not be regarded as a comprehensive and structured educational resource sufficient to demonstrate public benefit. In areas of controversy, education requires balance and neutrality with sufficient weight given to competing arguments. The promotion of a particular view or position would not equate to education

    The transparency of the relevant funding and interfunding and interlinking of all these groups of whatever hue merits particular attention 94. On the social media one blog puts the point very forcefully in addressing a well known high energy campaigner against state schools that continue with selection by ability :

    "Barely a week passes without you and your cronies setting up a new lobby group to campaign against any state schools that threaten to out perform bog standard comprehensives, whether faith schools, grammar schools, academies or free schools. Off the top of my head, I can think of three – Comprehensive Future, The Truth About Our Schools, The Local Schools Network – but I am sure there are many more. Who is paying for all these groups? Are any charities making contributions? Any Trade Unions? Political Parties? No public funds I hope.”

    In the independent Education Research Group at the time of the ISC case one was able to note the presence of campaigning writers one of whom was a then Ten Downing Street adviser and two members from Directory for Social Change while four of them Professor Peter Mortimore Fiona Millar Melissa Benn and Margaret Tulloch were also members of CASE (Campaign for State Education) and Ron Glatter, Melian Mansfield, and Margaret Tulloch were trustees of another self styled “independent” charitable trust namely Research on State Education Trust (RISE) whose projects were at the time financed by Nuffield Trust and Esmee Fairbairn Trust .

    Another campaigning body Comprehensive Future may be noted. This is a body that numbers among its steering committee the following familiar and recurring personalities: Melissa Benn who has delivered a Caroline Benn lecture at the Socialist Education Association Annual General Meeting and co-edited with Fiona Millar a book Comprehensive Future and Margaret Tulloch (Secretary) . Professor Peter Mortimore a director of the Institute of Education University of London in addition to his membership of Education Review Group is a leading member of the Socialist Education Association and has also delivered a Caroline Benn lecture to his fellow members of that Association. It is no surprise to discover that the New Visions for Education group cosily accommodates Margaret Tulloch Ron Glatter Fiona Millar and Peter Mortimore .The alliance on what is on any examination one between politically inclined think tanks and politically inclined members of education research groups that are claimed to be independent is worrying to the legal purist. The validity of the claims of these undoubtedly talented and no doubt worthy (but all the same committedly partisan campaigners) to be ‘persons who are or who may be affected” may also be questioned.

    Though to a very much lesser extent affected by this campaigning bug links between charities and the Conservative party have also not escaped reproach. There is to the legal purist an instinctual shudder engendered by the Atlantic Bridge Education and Research Scheme95 (a shell charity whose activities were non charitable in nature as not measuring up to its declared objects and claimed charitable status). It was dissolved by its governing body in September 2011. The charitable New Schools Network run at the time by Rachel Wolf a former aide of Michael Gove the former Secretary of State for the Department of Education and Science also gave rise to a complaint that it had received a disputed contribution from the Coalition Government and was excoriated as an example of ‘cronyism’ and denounced by the left wing Labour group Compass. It was eventually absolved though subjected to a reminder (called by its opponents “ a warning”) of the need to remain independent96 , though it has again more recently been the subject of complaint97 . An article, now removed, was published in the news section of NSN’s website with the title ‘Tories are fighting for the people Labour has abandoned’. It was in fact a copy of a Telegraph comment piece but NSN did not make that clear. The Commission said that in reproducing the partisan Telegraph article without stating its origin “it does appear that the charity is expressing support for the Conservative party generally.” - Global Warming Policy Foundation was another alleged to be politically slanted group promoted by Nigel Lawson former Chancellor of Exchequer and now Lord Lawson of Blaby which was the subject of an Operational report by the Charity Commission as result of which certain campaigning activities were siphoned off into a non-charitable subsidiary

    Way back in 2007, when the Brown’s Labour Government were in power two conspicuous heads of important umbrella charitable groups had no hesitation in welcoming the appointment of former Home Secretary David Blunkett to oversee the development of the voluntary sector. Stuart Etherington of the NCVO, since knighted for his work and a dedicated supporter of campaigning98 described Blunkett’s appointment as good news for the sector. Stephen Bubb of Acevo likewise knighted was no less enthusiastic. “Such a high profile figure” he thought “gave weight to Brown’s promises to engage communities and the campaigning nature of the third sector”. Those promises of the then Prime Minister Gordon Brown were triggered by Baroness Helena Kennedy QC’s Advisory Group on Campaigning and the Voluntary Sector a group which included Rosamund McCarthy a member also of the NCVO advisory group on campaigning and charities and wife of Sir Stuart Etherington, himself a firm supporter of campaigning . Baroness Helena Kennedy QC called for charities to be able to spend all their resources on political campaigning provided that such campaigning was not party political. However this would have to be in pursuance of a charitable purpose. The trustees, she says, would have to satisfy their duties under charity law as deduced by CC9 so as to show that the use of the resources was justified and that there is a reasonable expectation that the campaigning will satisfy a charitable purpose. Political campaigning remains still a theme of Labour in opposition and remains a core enthusiasm shared by the NCVO . Various sector charity umbrella groups had no hesitation in welcoming the Labour party’s future thinking in the area when it was in Government. Acevo chief executive Sir Stephen Bubb appeared before a committee of MPs to issue a stirring defence of the idea that charities must be allowed to campaign for what they believed in. The message unless replaced appears to be toughen up public benefit but to give a green light to politics galore ( à go-go) , a continuation of a viewpoint taken by the last Government.

    It is to be noted that other members of the NCVO advisory group who advised the NCVO in respect of an enthusiastic and supportive submission on charity campaigning as set out in the revised CC9 included Linda Barlow CEO of the Sheila McKechnie Foundation a body whose registration as a charity was powerfully criticised by Stanley Brodie QC in his Institute of Economic Affairs paper99 . Another member of the advisory Group was Linda Butcher of Shelter, a body which is again criticised for the scale of its campaigning expenditure .

    Advance of Aid Watch Already the decision of the High Court of Australia in the Aid/ Watch case had stiffened the resolve of those approving of, and welcoming, the alleged reversal of the alleged presumption of public benefit to subscribe to its usefulness in this country. They seem to be disposed to think that it will help to “liberalise” the law on campaigning. The anodyne use of the foxy word “liberalise” is to be noted. The powerful dissent of Justice Dyson Heydon in the Aid/Watch case in the High Court of Australia chimes with the more critical concern that other opponents of tendentious campaigning have evinced.

    Need for legislation One possible, though essentially temporising and soothing, view is that there is no need for any legislation to deal with expanding political involvement for example by applying the whole of a charity’s income to advocacy and campaigning. Financial constraints will be likely to attract local communities to call on charities in the current economic climate not to spend resources otherwise than on direct relief in their area. But that is an unworthy retreat from principle
    The contrarian view summarised at policy level is the one best encapsulated by Christopher Snowdon in his essay that evoked stern words from Sir Stephen Bubb. The subject has engaged much analysis on the other side of the Atlantic and will, one can safely prophesy, continue to engage even more attention in England. Withdrawal of the latest CC 9 and reinstatement of a revised earlier version are among proposals that have been discussed and may achieve recommendation. The longer CC 9 is left in place the more in danger of becoming politicised will charity law and the sector continue to be. But the Hodgson Review studiously avoids any mention of the campaigning issue. Nick Hurd, it should be pointed out, thought the latest CC 9 just about right, a view that is not one which commends itself to those of a more traditional cast of mind cleaving to the established jurisprudence and case law derived from judges of learning stature and distinction and not from the view point of those treating charities as ‘sock puppets’100 ..

    Review of registration of think tanks that claim to be educational A fundamental review of think tanks that claim to be educational is needed
    at registration stage and on rolling review. This is especially so when the research is referable to single issue campaigning. We may itemise here other campaigns which suggest themselves. Research by anti- independent schools anti-academy and anti free schools campaign groups and independent charities carrying out educational research , in other areas of political controversy are often suspect and the claim of academic integrity and alleged independence should be approached with circumspection and must be balanced by identification of distorting propagandist proclivities exhibited even by academics.

    This is a problem affecting many think tanks 101, dressed up in the alluring garb of alliances, commissions, focus or review groups, forums, foundations, hubs, institutes, networks, and trusts . It is also a problem at different points of the political spectrum. The Atlantic Bridge102 and New Schools Network spring to mind as well as the controversial absolution granted by the Commission to the Smith Institute103 : The New Schools Network (2007) which describes itself as an independent charity concerned with the setting up of free schools was interestingly and predictably assailed by a pressure group Compass direction for democratic left, an umbrella grouping of the progressive left whose sum is greater than its parts and of which Baroness Helena Kennedy QC is a member. The mission of Compass is, despite a proclaimed aspiration to “outreach”, firmly and frankly identified with the progressive left of the Labour party and with an intrinsic political ambition (“a strategic political voice” and “a politically coherent position”). This appears from the following three fold description of its essence: (i) a strategic political voice - unlike think tanks and single issue pressure groups Compass can and must develop a politically coherent position based on the values of democracy, equality and sustainability;(ii) an organising force - Compass recognises that ideas need to be organised for and will seek to recruit, mobilise and encourage to be active, a membership across the UK to work in the pursuit of greater democracy, equality and sustainability;(iii) a pressure group focused on changing Labour - but recognises that energy and ideas must come from outside the party, not least the 200,000 who have left since 1997.

    In the absence of any recommendations about, or proper consideration of. the political campaigning problem by the Hodgson Report, further submissions need to be made for consideration at least in Parliament, if not for use by the legislators . If revised guidance is expected it would be as well if independent advice was sought outside the Charity Commission. The present tension between the arguments extrapolated from international declarations by human rights charities involving themselves in agitation and campaigning must yield to the overriding possibilities of being trumped by the domestic common law insistence on good citizenship enjoined as part of public policy.

    CASES DECIDED BY COMMISSION OR IN TRIBUNAL OR COURT

    Flarepath signalling cases emerging in 2013-2015 for possible further analysis

    1.Kennedy v Charity Commission [2014] UKSC 20

    The judgment of the Supreme Court runs to over ninety pages. It is the latest in a series of decisions in which the Court has placed very specific emphasis on the common law, as opposed to the Human Rights Act 1998 and the European Convention on Human Rights, as a source of fundamental rights and values.
    The Charity Commission refused to disclose certain information to the claimant journalist on the ground that the information fell within section 32(2) of the Freedom of Information Act 2000. That provision says:Information held by a public authority is exempt information if it is held only by virtue of being contained in—

    (a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or
    (b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

    If information falls within the exemption created by section 32(2), the effect (by reason of section 2(3)) is that it is absolutely exempt from disclosure. One of the issues in Kennedy was whether information remained exempt once the inquiry in question was over. The Court held that it did: it remained absolutely exempt for 30 years, until such time as it became a historical record.

    The common law prevailed over Article 10 ECHR.
    2.Regentford Limited v Charity Commission (CA/2013/0014) 25 April 2014
    Regentford Limited was an orthodox Jewish charity which had closed in 2010 and was removed from the register at the time. But in 2011 it asked to be restored to the register of companies in order to carry out legal action. The Charity Commission wrote to the charity saying that if it was once again operational it should be restored to the register of charities as well.

    Regentford appealed this decision to the Tribunal on the grounds that it had no income and was not operating. However the Tribunal ruled that while it had limited activity, the fact it was capable of carrying out legal action meant it was operational, and the Commission was not required to remove it.

    3.Watch Tower Bible and Tract Society v Charity Commission [2014] EWHC 1135 (Admins)
    Watch Tower Bible and Tract Society a Jehovah’s Witnesses charity has been refused permission to appeal a Charity Tribunal ruling that had denied it extra time to appeal against the opening of a statutory inquiry.

    The charities had claimed that the ruling earlier this year that denied them extra time to appeal was unlawful. They both claimed that the 3 March ruling had three legal errors relating to whether the charity had a good reason for asking for an extension.
    Judge Alison McKenna, principal judge of the Charity Tribunal said in the latest ruling that she has “decided not to undertake a review as I am not satisfied that there was an error of law in my ruling”. On applicationn for judicial review Dove J held that judicial review was a remedy of last resort. Where there was an appropriate statutory remedy the High Court should decline jurisdiction. Determining what was the most expedient remedy was not enough; there was a presumption that the statutory regime would be followed unless there were exceptional reasons for judicial review: see e.g. R. (on the application of C) v Financial Services Authority, – which contains a good summary of the authorities.

    4.Woking Museum and Arts and Crafts Centre v HMRC [2014] UK FTT 176 (TC) 10 February 2014

    • The Museum is a registered charity in Woking, funded largely by an annual payment from the local council. There was an agreement in place between the Council and the Museum, under which the local authority provided annual funding under a service agreement and the Museum had to provide a temporary exhibition museum facility and visitor information service with provisions ensuring minimum levels of free access to certain aspects of the service, and for specified areas. The Museum was also required to report annually on how it met its obligations, and had to provide an indemnity against any loss or liability on any breach of the agreement. The First-tier Tribunal (Tax) held that these arrangements as a matter of law represented a contractual relationship based on a 'mutuality of obligation' In other words both parties were thereby required to do something under the services agreement it and if the Museum failed to provide the services it would be liable to the Council in damages. Nor was the relevant annual payment required to be used by the Museum for any particular purpose as a grant would often be. The arrangements between the parties were thus commercial in nature and so constituted a taxable supply. The simultaneous pursuit of a charitable objective by a service provider did not render the relationship non-economic and therefore not liable to VAT. The same services could be provided by a non-charity and the Council admitted or conceded that were it not for the Museum
    The services delivered by the Museum were of direct benefit to the Council, not just to the community public at large. This was because the Museum provided services associated with a Council owned collection of artefacts housed in the Lightbox and the Council admitted that, were it not for the Museum, it would have sourced those services elsewhere.

    Lastly, whilst the agreement actually resulted in a 'bad bargain' for the Museum, the arrangements could not be said to be non-commercial or non economic in nature in nature (and therefore not to represent a taxable supply). The lack of a formal tendering process did not according to the Tribunal make the arrangements 'non-commercial' - it accepted that there was only ever one potential party to the contract. In addition the simultaneous pursuit of a charitable objective by the Museum did not render the arrangement 'non-economic'.

    5.Harrogate FairTrade Shop v Charity Commission for England and Wales (First Tier Tribunal (Charity), General Regulatory Chamber, 27 March 2014)

    The appellant was company limited by guarantee company which had in 2009 taken over from an unincorporated association a shop located in the porch of a church in the Yorkshire spa town of Harrogate. It had applied to the Charity Commission for registration as a charity but had its application rejected on 29 August 2013. It sells Fairtrade goods purchased from suppliers accredited by the Fairtrade Foundation, and goods from other suppliers who are members of the British Association of Fairtrade Shops and Suppliers..

    The question in the appeal became whether the appellant’s draft objects were exclusively charitable and for the public benefit. The appellant’s draft objects at the time of its registration application in 2013 were:
    (1) The prevention and relief of poverty in developing countries around the world by selling fair trade goods, that is goods for which the producers of those goods have received a fair price, thus enabling those producers to lift themselves out of poverty and raising awareness of the same in the UK for the public benefit;
    (2) The furtherance of the exclusively charitable purposes of such UK registered charities which work directly in relieving or preventing poverty, relieving financial need, hardship, suffering or distress or those relieving those with a charitable need in any part of the world as the trustees see fit.
    The Commission accepted that the second of these objects was on its face capable of being charitable so long as the directors took the right decisions. But it rejected both sets of objects. The Commission and the Tribunal both construed the Act as requiring a trust for the relief or prevention of poverty to go on to prove the public benefit of its activities as well because of the provisions of section 4(2) of the Act which dispensed with or discounted any presumption of public benefit The objects were not exclusively charitable because the relevant public benefit had not in the circumstances been proven. Trading was not a charitable purpose and should really have been achieved through the establishment of a charitable trust to which the company would covenant its profits. Trading quite simply is not a charitable purpose and undertaking a permanent taxable trade is not charitable in itself. So the company could not be charitable in law. The tribunal took it upon itself to express sympathy for the aspirations of the company which they said might be realised by suitable additions to the evidence as necessary.

    Choudhury and another v Stepney Shahjalal Mosque & Cultural Centre Limited [2015] EWHC 643(Ch) Birss J 12 February 2015

    Stepney Shahjalal Mosque & Cultural Centre Limited is a charitable company limited by guarantee. It owns and runs the mosque and cultural centre from which its corporate name is derived. Its governing Articles of Association define its members by reference to the ward of St Dunstan's in East London where the mosque is situated. The Articles also define trustees and provide provisions for election of trustees for the members of the company.

    After an uncontentious election of trustees in 2012, when a number of trustees were elected, five of the parties to the present action were elected: the two applicants and three respondents. Not long after, in 2013 problems and disputes began to surface and the trustees divided into two factions or camps. By June 2014 things had reached such a pitch of ill feeling between the factions that there were a series of meetings in which each side claimed to have expelled their opponents from membership or trusteeship. The animosities then escalated further. Extremely serious allegations centering on control of funds and allegations of violence were made. On a couple of times the police came in to keep or restore the peace. There is a dispute as to whether the first applicant was Chairman and the second applicant Treasurer. At the time of the application in the Queen’s Bench Division the respondents had control of the electronic codes which allowed them to make changes to the register at Companies House. Using those codes they removed the applicants from being named on the register as trustees. The applicants claimed that these changes were incorrect and unlawful. the applicants have some control at least over the banking facilities of the company, although it seems that the bank has frozen the accounts as a result of this dispute.The applicants brought an application on notice in September of last year before Phillips J in Queen's Bench Division,. The judge told the applicants that they should bring their case before the Companies Court given that the charity was a company. The court was made aware of occasions when attempts to mediate had been made and where mediations had taken place, but to no avail.

    In early December 2014 there was a third mediation. One of the results of that was a decision to hold new elections, the usual suggested solution where previous elections have been challenged . That was clearly something which, if capable of progression, would be appropriate to sort out the issue of control of the company.

    In late December 2014 the applicants issued the Petition which went before the Companies Court and was due to be heard on 27 February 2015. At the first hearing it was envisaged that appropriate direction would be given. The Petition is the originating process which commenced these proceedings which were “charity proceedings”.

    By January 2015 it was clear that there was jurisdiction in the court to grant interim injunctive relief pending permission to proceed being granted by the Commission so as to enable a notice to hold an Annual General Meeting and an Election in relation to the company. Interim injunctive relief was therefore granted. No further information has been traced at present about the progress of this case.
    7.Bisrat and others v Kebede and others [2015] EWHC 840(Ch) [2015] All ER (D) 305 (Ethiopian Orthodox Church case)

    The Ethiopian Orthodox Tewahedo Church of St Mary Debre Tsion has been riven with dispute for some time. It had been dogged by long running disagreement over the trusteeship and management of the charity The disagreement has, in the past, spilled over into disruptions to the charity’s religious services and continues to affect some members’ ability to attend services. It has also engendered regulatory concerns because of failures to comply with statutory duties

    From April 2013 onward the Commission raised with the charity a variety of regulatory issues such as whether or not there have been properly appointed trustees in place, the measure of charity’s financial controls and management and whether the charity’s property is properly managed.

    Particularly serious was the fact that the charity had also persistently failed to submit annual accounts and annual returns to the Commission on time. The charity’s accounts for the financial year ending 31 December 2013 were submitted on time on 31 October 2014. However, its accounts for 2009, 2010 ,2011 and 2012 were not submitted to the Commission on time.

    Since May 2014, the Commission has sought relevant information to address the Commission’s concerns from the individuals currently administering the charity during its recent engagement but this has not been provided despite repeated requests to do so. This includes not complying with requests for information and declining to meet with the regulator.

    All this has inevitably exaerbated the position and led predictably perhaps into the initiation of proceedings. The proceedings concerned a dispute between parties who worshipped and wished to continue to worship at a church owned by the charity which is based in Battersea . Some of the defendants claimed to be the trustees in control of the charity. The claimants as registered members and worshippers at the church brought a CPR Pt 8 claim to determine whether a trust deed, establishing the charity, had been validly executed and which parties had control over the charity. The claimants made an interlocutory application, seeking directions and orders to regulate how the trust property was to be used until the case was tried. Judge Purle QC in the Chancery Division, having found that it was not possible to determine who controlled the trust, administered the trust so as to permit the claimants to conduct services on specified days and to have access to the church during permitted hours.

    8. Augustine Housing Trust v Official Receiver (unreported 29 April 2015)
    Proceedings to enforce a rate or council tax demand against a charity are not charity proceedings.

    9.Friends of Devonport Park Limited [O/333/15)

    An unincorporated charity, Friends of Devonport Park, which runs a has succeeded in obtaining an order from the Company Names Tribunal under s 69 of the Companies Act 2006 that a new company, Friends of Devonport Park Ltd, name must change its name. The new company had been set up by some disaffected members of the charity and its assunmed name was so similar that use of it by suggesting a connection between the company and the applicant would be likely to mislead lead. The Company Names Tribunal held use of the name to have adversely affected the goodwill and reputation connected with it which in fact belonged to the unincorporated charity. No defence was made out under s69(4) of the 2006 Act and the incorporated company, it was held, had an offending name which was ordered to be changed.

    10 University of London v Prag and Attorney General [2104] EWHCX 3564(Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2014/3564.html

    In 1933 the notable Warburg collection dating back to about 1900 in Hamburg was transferred to London to avoid Nazi threats. There a Society was formed in London governed by a Trust deed dated 13 May 1934. The general purpose of the Society was the promotion of science, literature and fine arts with a direction that :

    “…the first work of the Society shall be to house and maintain in England all or some part or parts of the library and collection of photographs hitherto held by the Warburg Institute at Hamburg and to cause such library and collection to be exhibited studied used and enjoyed for purposes and in manner consistent with the above stated general purposes of the Society.”

    Proudman J in reviewing the history of the Library identified that to start with it had no permanent home in England, although it was established properly as an Institute. Indeed it was not until 1944 that the Library was placed with the University of London ( UOL) under a Trust dated 28 November 1944, again in the form of an Institute. Funding for the Library and the Institute was provided by the UOL from 1945 under various funding models. However, the UOL no longer wished to provide funding because of restrictions in its budget. It wished to roll the Library into a general library structure within UOL (i.e. as part of its own university property). Proudman J nevertheless was constrained to hold that the Library was not the property of the UOL. It was held on charitable trusts, and had to be maintained separately from university property, because (at [133]):

    …as a matter of construction UOL is the trustee for the Institute, and not merely the 1944 Collection, and as, again as a matter of construction, the Deed imposes a duty on UOL to manage the Institute as ‘an independent unit’ having regard to its ‘special character’….

    The effect of the Deed was not rigidly to constrict, harden or as it were ‘calcify’ the 1944 collection as the subject of the trusts under the Deed. Certainly the trust related to the collection as it was in 1944; but it also related to the many additions that had been made to it since, and indeed to the Institute itself. The consequence was that while being part of UOL the Institute was subject to its own special trusts under the Deed, and as such, could not be treated as UOL property.

    11. Rai and others v Ahir and others [2014] PTSR 1237 Rai v The Charity Commission for England and Wales [2012] EWHC 1111Norris J 1 May 2012 There is a detailed Note in Australian Centre for Philanthropy at QUT Wiki

    This case concerned an application for permission to proceed with
    charitable proceedings by claimants claiming to be members of a charitable religious association 'Ravidass Sabha' with a temple in Southall. The actual dispute centred on the terms of a public notice, published by executive committee of the association, inviting persons to register as members of the charity which prompted the claimants to apply for injunction in respect of the public notice. This in turn necessitated the application to the Charity Commission which refused permission to proceed. On the appeal to the court there was an issue as to whether the proceedings were properly constituted and whether permission to proceed should be granted. Norris J held that the claimants had an arguable claim that, on the proper construction of the governing constitution it was not a requirement of membership that members had to be 'believe' in the Granth or that the Granth was the only Holy Book. In the circumstances it was appropriate for the proceedings for permission to proceed to be adjourned and the injunction application stayed where there was (as in the present case) a significant chance that an agreement could be reached which did not involve the expensive prosecution of the instant proceedings.
    12.Baddeley and others(Trustees of Bath Recreation Ground) v Sparrow and others [2015] UKUT t 420 (TCC)

    The Upper Tribunal has held that on the true construction of the governing documentation it was not the purpose of the charity prior to the enactment of the scheme under challenge in the Upper Tribunal to preserve the recreation ground as entirely open space. The purpose was to preserve the recreation ground as a recreational facility available for the benefit of the public at large.

    There was no independent purpose of holding the land in specie as an open space. The requirement set out in a proviso not to use the land otherwise than as an open space was on its true construction not part of the recreational purpose and was not a condition qualifying the use of the the land for recreational purposes. It was at most a restriction on alienation. The uses to which the ground had been put were not breaches of trust . For a helpful convenient and more detailed survey of the prior litigation and the Upper Tribunal decision see QUT Wiki account of the case by Anne Overell (Nov 9 2015 )

    13.Wilfrid and others v Charity |Commission for England & Wales: Independent Press Regulator Trust( IPRT)

    On 18 June 2015 the Charity Tribunal overturned the regulator’s decision not to register as a charity the Independent Press Regulator Trust (IPRT), which was constituted so as to fund a new regulator for the press,

    IPRT was set up to fund an independent press regulator to promote ethical conduct and best practice in journalism. It has indicated that it is likely to support Impress, which is an organisation that has set itself up as an alternative to the Press Complaints Commission, Ipso, but may also fund others.

    In October 2014 the Commission published its decision not to register the organisation as a charity as it could not be clear that supporting the regulation of the press was a charitable object.

    Three trustees of IPRT appealed to the Charity Tribunal, which has overturned the Commission’s decision.

    The case was heard in May 2015 and produced a judgment which said that the organisation’s objectives could be considered charitable. The tribunal has directed the Commission to register it.

    The judgment refers to the Lord Justice Leveson’s recommendation that an independent press regulator should be established and said: “If such a regulator cannot be established by the government for constitutional reasons and ought not to be established by the industry itself for reasons of propriety and public confidence, then the charity sector is uniquely placed to be able to offer both the mechanism and the means by which a benefit to the community as a whole can be achieved.”
    A spokeswoman for the Commission said the regulator was considering the judgment, but could not say whether this meant it would accept it or would consider appealing to the Court of Appeal.

    14. R (on the application of Cage Advocacy UK Ltd) and Joseph Rowntree Charitable Trust v Charity Commission
    The Joseph Rowntree Charitable Trust made grants to the advocacy group Cage Advocacy UK Ltd whose purposes were to promote and protect human rights. So too did the Roddick Foundation. The Charity Commission censured JCTR and sought to interfere with their future funding in this direction as bringing the charitable sector into disrepute This cause Caged to launch an application for judicial review The application was allowed to proceed by Burnett LJ on 23 July 2015 and came on came on for hearing on 2015 reached proceed byThe Charity Commission has confirmed it does not aim to restrict trustees exercising their discretion in advancing their objects, including around funding decisions, as advocacy group Cage’s judicial review of the regulator’s actions has been withdrawn The Charity Commission has confirmed it does not aim to restrict trustees exercising their discretion in advancing their objects, including around funding decisions

    15. North of England Zoological Society v HMRC [2015] UKFTT 287 (TC) (The Chester Zoo case)

    The question which arose in this case was whether the costs of feeding and treating animals at Chester Zoo had a direct link to food, drink and merchandise sales (taxable sales) earned by the zoo as well as the VAT exempt admission fees paid by the general public?
    HMRC tried to restrict the society’s input tax claim over a 10-year period by applying the standard method override calculation on costs relevant to the animals. The VAT involved was nearly £1m, mainly because of capital expenditure of £14m spent by the society in a five-year period to provide new and improved enclosures for the animals.

    In its evidence, HMRC acknowledged that the level of integration experienced by visitors observing the animals and enjoying the catering and retail offerings was a critical factor, but argued that Chester Zoo was not offering an ‘all immersive experience’ similar to a Disney theme park.
    The judge disagreed, stating: ‘Standing back to look at the overall picture, it seems to us that in the particular circumstances of the society’s economic activities the animal related costs have a direct and immediate link to the catering and retail supplies. We are satisfied that economically the animal related costs are a cost component of the catering and retail supplies.’

    On this basis, the zoo’s appeal against HMRC’s assessment was allowed, with the judge pointing out that its business model, in commercial terms, exploits the animals in order to achieve various income streams, the most significant of which are admissions, catering and retail. In that sense the animal related costs are borne by all those supplies.

    16.Annuity Helpline published 4 August 2015

    An aspirant to be registered as a charitable incorporated organisation (CIO) operated a help line to provide advice and information for the retired (retirees). The organisation claimed its purpose was to advance education for the public benefit. The commission considered that there was insufficient information to support this position. It appeared to the commission that the organisation would be providing general information and advice rather than advancing education. In consequence the commission did not feel able to register the organisation : it was not established for exclusively charitable purposes.

    17.Rhema Church London (registered charity number 1075100)

    The Charity Commission opened a new statutory inquiry into Rhema Church London (registered charity number 1075100). The charity’s objects include the advancement of the Christian religion. The inquiry opened on 3 August 2015.

    The Commission had been engaging with the charity as part of an operational compliance case since February 2015, after the charity’s auditor qualified its accounts for the year ended September 2013.The accounts and annual return were filed late and the auditor qualified the accounts on the basis that they had been unable to obtain sufficient audit evidence to quantify how much of the expenditure incurred on the charity’s credit cards of £203,707, and petty cash expenditure of £76,161, was incurred in accordance with the fulfilment of its objects. This included £86,055 relating to overseas development workshops. This raises regulatory concerns that charitable funds may have been misapplied.
    Since then, the Commission has been seeking to obtain information from the trustees to allay the concerns, including through an order made under section 52 of the Charities Act 2011, which the trustees only partially complied with during the operational compliance case.

    The Commission was also concerned by evidence it received in July 2015 which states that the trustees rejected the conclusion of the auditor’s report. This and the trustees’ failure fully to comply with the Commission’s order raised further regulatory concerns for the Commission.

    The issues the inquiry will examine include:

    • the administration, governance and management of the charity
    • whether or not and to what extent there has been mismanagement and/or misconduct on the part of those acting in the administration and management of the charity
    • whether the trustees are willing and able to take necessary action to rectify the problems within the charity
    • the possible missappropriation and/or misapplication of the charity’s funds
    • the charity’s financial controls and risk management policies
    • the failure to comply with legal obligations in relation to the filing of the charity’s accounts and annual returns

    Annual accounts for financial year ending 30 September 2014 were overdue and the annual return was filed 42 days late

    The CC ritually emphasise that the opening of an inquiry by the regulator is not in itself a finding of wrongdoing. The purpose of an inquiry is to examine issues in detail and investigate and establish the facts so that the regulator can ascertain whether or not there has been misconduct or mismanagement; establish the extent of the risk to the charity’s property, beneficiaries or work; decide what action needs to be taken to resolve the serious concerns, if necessary using its investigative, protective and remedial powers to do so

    VAT AND TAX :

    VAT rebates under a VAT rebate scheme are to be allowed to hospices search and rescue charities and air ambulance

    19. Caithness Rugby Football Club v HMRC [2015] UKFTT 378 (TC)

    The First-Tier Tax tribunal has held that the construction of a new clubhouse qualified for zero rating on the basis that it was intended for use by a charity as a village hall or similarly. Although the charity's applications for grants to fund the construction had not demonstrated the required intention, this could be inferred from the local community's use of the building, once constructed.

    20.HMRC v Brockenhurst College [2014] UKUT 0046

    The Upper Tribunal held that the supply of meals and tickets for concerts and other live shows which are performed as part of the College’s educational course were inside the scope of the education exemption notwithstanding that the students were not the beneficiaries of the supplies in question as being closely linked to education and as enabling the students to enjoy better education . The hearing of the Revenue’s appeal in the Court of Appeal was delayed beyond February 2015 and is due to be heard in the Michaelmas Term before the Christmas break

    Longridge on the Thames Longridge v HMRC [2013] UK FTT 158 (TC)

    This concerned zero rating on a new building namely a new Buckinghamshire raining centre for water sports. The Upper Tribunal rejected an appeal by HMRC against the decision of the First-tier Tribunal decision that on the basis of the six indicators of whether an activity amounts to the carrying on of a business as set out in Customs & Excise Commissioners v Lord Fisher [1981] STC 238 the FTT had not come to a conclusion that could be shown to be mistaken in law . Even though Longridge charged fees certain features of its activities were not consistent with sound business principles. HMRC has been granted permission to appeal to the Court of Appeal

    Serpentine Trust Ltd v HMRC [2014] UKFTT 876(TC)

    Serpentine Trust Limited (STL) is a registered charity operating two art galleries and five supporter schemes. Supporters are entitled to receive specific benefits, depending upon the scheme supported. These include priority booking rights for events, free invitations to exhibitions and invitations to events where refreshments are provided or opportunities for private hire . In order to receive the benefits the supporter has to pay the full amount of the scheme joined.

    STL treated the income from supporters as donations and so outside of the scope of VAT. HMRC believed the payments received were for the supply of benefits to the supporters and therefore subject to VAT. In 2012 HMRC raised retrospective VAT assessments totalling over £170k and also reduced a VAT repayment claim (in respect of VAT accounting period 09/12) by an additional £166k.

    HMRC’s case, now upheld by the FTT, is that the supporter income was a single (rather than multiple) taxable supply. HMRC refused to allow the charity to use Extra Statutory Concession (ESC) 3.35 which allows the apportionment of membership subscriptions to non-profit making bodies.

    In this case, some supporters received printed matter (a catalogue) which would be zero-rated if supplied in isolation. HMRC’s approach is that ESC 3.35 may only be used by genuine membership organisations i.e. where members have some democracy over the control of the body and have voting rights. Members are usually defined in the organisation’s memorandum and articles or some other governing document.

    The charity’s case was, essentially, that the supporters wished to donate money to it. The provision by the charity of any benefits was simply an acknowledgement of the donation. Benefits were not given or supplied in return for the payment. The value of the benefits was less than the payment received.
    The FTT rejected the charity’s arguments and upheld HMRC’s assessments. If HMRC view the errors as arising from a failure to take ‘reasonable care’ a 30% penalty may be applied. In this case that could result in an additional £100k owing to HMRC. Thiough the case turns on its own facts similar schemes need to be checked to see whether hey are in accordance with ESC 3.35

    21.The Trustees of the Institute for Orthodox Christian Studies Cambridge

    Usually a seller of a property has ‘opted to tax’ (in other words has elected to make the transaction a taxable supply rather than an exempt supply). The consequence is that VAT is chargeable on the value of the sale. Charities have been entitled to claim relief from VAT in cases where a building is intended for use solely for a “relevant charitable purpose” (RCP).

    The appellant Institute was a religious charity seeking to purchase for £800,000 a new base in central Cambridge. The seller was VAT registered and had opted to tax. The appellant was not VAT registered, but believed it could disapply the seller’s option to tax because of its proposed RCP use of the property.

    There were two substantial snags facing the charity purchaser. Pending conversion works at the property existing tenants were allowed to remain in the building for a short period, paying rent to the charity (rather than have the building empty) so as to cover overheads in the meanwhile ; and
     it charged fees for courses and other facilities (albeit these were subsidised by both government grants and donations to the charity).

    HMRC contended that the charity, through its lettings of excess space in the property and through the charging of fees to students was actively engaged in a business activity. Accordingly, the option to tax should not have been disapplied and VAT should have been charged by the seller.

    On the evidence, the Tribunal upheld as correct the HMRC stance and contention. The letting of rooms and the fees it received in connection with religious studies could not be regarded as anything other than consideration for the teaching and other supplies it makes. As a consequence, the Tribunal dismissed the appeal and confirmed that £133,000 VAT was due on the sale of the property.
    Abuse of tax relief on gifted shares

    Nicholas Green v HMRC [2014] UKFTT 396(TC) (28 April 2014)

    Another attempted abuse of the tax relief available when shares are gifted to charities has been foiled by the First-tier Tribunal in a 46 page judgment which carefully analysed the tendered valuation evidence on either side

    HM Revenue and Customs (HMRC) successfully challenged the tax avoidance scheme used by Nicholas Green and designed by Afortis Limited. This First-tier Tribunal (FTT) ruling and its impact on similar schemes could make sure over £35 million of tax is paid.

    Under the scheme, shares were listed on the Channel Islands Stock Exchange at a value significantly more than their real worth. How this was done involved . The shares were then gifted to charity at the inflated value. The scheme was designed to allow Mr Green to claim tax relief on the amount that the shares had been listed for, rather than on the much lower amount that the shares were worth.
    The tribunal ruled that the relief claimed should be reduced significantly from that claimed by those using the scheme.

    Direct mailing services costs chargeable to VAT from new date

    As a result of forceful representations from Charity Tax Group, HMRC agreed to postpone the date that VAT must be charged on direct mailing services costs from 1 April 2015 to 1 August 2015. See: Policy paper Revenue and Customs Brief 10 (2015): VAT - direct marketing services using printed matter (published 15 July 2015)
    .
    CHARITY NEWS AND SUNDRY UPDATES

    In this section some of the sundry updates will be very brief as they are preliminary or preparatory incidents leading to later guidance policy formulation or decision making at a higher level . Fund raising is in a state of flux and crisis. New rules to curb charity fundraisers’ high pressure practices are being introduced and new reserve fundraising powers being added to the Charities (Protection and Social Investment Bill) still undergoing Parliamentary attention in the Commons. The fate and outcome of the recommendations of Sir Stuart Etherington also await further consideration .

    Public Contract Regulations 2015

    These came into force on 26 February 2015 and copy out the Articles of the new EU Public Sector Procurement Directive 2014/24/EU whose contents readers would be well advised to have within reach while reading the 2015 Public Contract Regulations. Other useful materials on the internet include
    A Short Guide to The New Public Contracts Regulations 2015 From a Contracting Authority’s Perspective Pinsent Martin 5pp (double columns)
    Farrer & Co update on the Draft Public Contract Regulations 2015 (http://www.farrer.co.uk/News/Briefings/The-Draft-Public-Contract-Regulations-What-you need-to- know/)
    Farrer & Co Briefing Public Contract Regulations 2015; now published
    Posted 16/02/15.

    Modern Slavery Act 2015

    The Home Office has issued Transparency in supply chains : a practical guide Foreword by the Home Secretary the Rt Hon Theresa May MP Statutory guidance relating to section 54 of the Modern Slavery Act 2015 (29 October 2015) 46 pages.

    Section 54 of the Modern Slavery Act 2015 requires certain organisations to develop a slavery and human trafficking statement each year. The slavery and human trafficking statement should set out what steps organisations have taken to ensure modern slavery is not taking place in their business or supply chains.

    This document provides guidance on:
    • who is required to publish a statement
    • how to write a slavery and human trafficking statement
    • how to approve and publish the statement

    Consultation to enable charities to file digital accounts with the Charity Commission
    The Charity Commission, the independent regulator of charities, and the Financial Reporting Council launched on 8 October 2015 a consultation that marks the first step towards enabling charities to file digital accounts with the commission, and thereby make charity data more accessible.

    Currently 70% of companies file digital accounts with Companies House. The Commission wants to enable charities to do the same, making it easier and quicker for those charities that have to file with both the Commission and Companies House.

    Anyone using digital accounts will be able to extract the information that they want and analyse it more efficiently. Those charities filing tax returns with HMRC will also benefit from having the option of digital filing when submitting supporting accounting information.

    Consumer Rights Act 2015 The largely consolidating Consumer Rights Act 2015 (CRRA 2015) to which Royal Assent was given on 26 March 2015 came into force on 1 October 2015
    Relevance to charities It consolidates previous case law and legislation, but does make some changes to the law that are likely to be relevant to charities when they are dealing with individuals who are not acting mainly for the purposes of their trade, business, craft or profession. Section 62 requires contracts and notices to be fair and section 63

    Unfair terms: Some terms as set out in CRRA 2015 in ss 63, 65, 66, and in 31,47 and 57 and Sch 2, part1 comprise a “blacklist” of some terms that will automatically be deemed unfair and not binding on a consumer. In particular, charities cannot exclude or limit liability for breach of the terms implied by the Act into a contract for goods or paid for digital content. In relation to services, charities cannot limit liability for breach of certain implied terms to less than the contract price. There is also a “grey list” of 20 potentially unfair terms (these will be subject to a fairness test).104

    Digital content: The Act introduces a completely new set of rights and remedies for consumers who purchase digital content. The term ‘digital content’ covers, for example, books in digital format, computer software, audio-visual content, mobile apps and computer games. However, the consumer protection legislation will not apply to free digital content – it only relates to purchases where payment passes.
    Transparency and prominence: There is now a statutory requirement that all terms of a consumer contract must be in plain and intelligible language and given requisite prominence. This may require some charities to rewrite their standard terms and conditions.
    Ticket reselling Further free guidance is available on the www.gov.uk website and from the Business Companion website, whose compliance checklist may be a particularly useful reference point.
    Pre-contractual information s 50.
    Remedies:These are set out in section 54-56 and paras 262-276 esp at para 274 in the Explanatory Notes to the Act.

    Conversion of charitable company to status of Community benefit society to enable expedient money raising

    Re Clevedon Pier and Heritage Trust Limited

    On 15 October 2015 the Charity Commission published a case report on the enabling sanction which it granted under CA 2011 s198 to the conversion of a charity, in fact a charitable company limited by guarantee, registered as a charity in 1981, into a community benefit society. This manoeuvre was designed to satisfy the requirements of the Co-operative and Community Benefit Societies Act 2014 and other principles of charity law.

    The purpose of the conversion was to raise sufficient funds to enable the last 10 per cent of the finance for completing the inclusion at the end of the restored pier of a new visitor and educational centre. The iconic Clevedon Pier much admired by John Betjeman was made and opened in 1869, and rescued from demolition after a partial collapse on the two end spans into the sea in 1979 and is the only intact Grade 1 listed pier in the UK.

    Interim managers appointed by the Charity Commission

    In an illuminating short article in his firm’s October 2015 newsletter entitled ‘Thoughts from the desk of an interim manager’ Michael King of Stone King past Chairman of the CLA who has had considerable experience (five or six appointments as an interim manager) looked at the triggers for intervention by the Charity Commission the possible operational activities of an interim manager and the lessons learned. Protective powers under section 76 of the Charities Act 2011 enable the Charity Commission to intervene where there is misconduct or mismanagement which causes concerns about the need to protect and preserve the charity’s property by measures such as the removal of trustees freezing accounts under section 76 of the Charities Act 2011. One such Charity Commission power is the power to appoint an interim manager: CA 2011 s76(3)(g). The interim manager may be in contact with trustees and employees the HMRC police SFO and others involved. Some useful observations about the work of the interim manager are aired, his ambit of cooperation with the Charity Commission and with trustees unless the latter are excluded and his ability to veto actions by trustees .

    Publications

    The Institute of Chartered Accountants in England and Wales (ICAEW) published TECH 16/14BL 'Guidance on donations by a company to its parent charity'.
    The Essential Trustee: what you need to know what you need to do (CC3 ) (July 2015)39pp and see also CC3a.

    Whistleblowing: guidance for charity employees (12 October 2015)
    CC Guidance to Independent schools update (22 October 2015)
    The latest updated guidance now encourages trustees of charitable schools, as a matter of good practice, to comment on their individual approaches to public benefit in sports, drama, music and other arts in their trustee annual report.

    The Charity Commission has also updated its Example trustees annual report for a charitable school to reflect the recommendation in the updated guidance.

    HMRC EIM12800 - Termination payments and benefits: table of contents

    All HM Revenue and Customs (HMRC) tax related documents and other announcements for Summer Budget 2015
    Juliet Chevalier-Watts “The Operation of Public Benefit in New Zealand-Meeting Contemporary Challenges CLPR Vol 17 January 2015;
    Juliet Chevalier-Watts "The Changing Face of Political Purposes and Charity Law in New Zealand" Trusts & Trustees January 2015.
    Juliet Chevalier-Watts “Shedding the Shackles of Bowman: A Critical Review of the Political Purpose Doctrine and Charity Law in New Zealand", NZLJ, April 2015, 108 – 115

    Books received since 1 October 2014

    Kevin O’ Halloran The Politics of Charity (Routledge 2011)
    Terrance S Carter Maria Elena Hoffstein Adam Parachin (ed) 2015 Edition Charities Legislation & Commentary Lexis Nexis Canada Inc 2015, Commentary 1-51, Legislation 65-961 Index 963-988
    Malcolm Cope (ed) Interpreting Principles of Equity: The W A Lee Lectures 2000-2013 Foreword The Hon Chief Justice Paul de Jersey AC, The Federation Press (2014) 1-353 Index 354 -362. See the 2011 W A Lee Equity lecture Malcolm Cope Introduction 294- 296 and Chapter 12 The Hon Justice Margaret McMurdo AC ‘Faith hope and Charity : the Resilience of the Charitable Trust from the Middle Ages to the 21st Century’.

    Matthew Harding Ann O’Connell and Miranda Stewart (ed) Not-for-Profit Law: Theoretical and Comparative Perspectives Cambridge University Press (2014) xxviii 1- 386, Index 387-393.

    Con Alexander & the Charities Team at Veale Wasborough Vizards Charity Governance (Jordans 2nd edn 2014) v- xxxiii, 1-408 , Appendix 409-410 Index 411-431.

    Mary Synge The New Public Benefit Requirement: Making Sense of Charity Law?( Bloomsbury Hart Publishing,2015 ) With a Foreword by Hubert Picarda QC vii-ix 250pp Bibliography Index
    Terrance S Carter and U Shen Goh Branding and Copyright for Charities and Non-Profit Organisations Lexis Nexis Canada Inc 2nd edn 1- 263Appendix I Trade Marks Act 265-317, Appendix II Copyright Act 319-500

    Notice of overseas books

    Donald J Bourgeois The Law of Charities and Not-for-Profit Organisations (4th edn LexisNexis Canada 30/11/12 )

    Juliet Chevalier-Watts The Law of Charity, ThomsonReuters NZ , 2015

    Susan Barker Michael Gousmett and Ken Lord Law and Practice of Charities in New Zealand (LexisNexis NZ Ltd)

    Terrance S Carter Maria Elana Hoffstein Adam M Parachin (ed ) Charity Legislation and Commentary 2016 LexisNexis Canada

    Reviews of Picarda The Law and Practice Relating to Charities, Fourth Edition October 2014

    “Lawyers heap praise on the ‘learned, academic and fascinating’ authority that is Hubert Picarda QC, who advises on an array of both non-contentious and hotly disputed charity cases. His ‘superb, detailed analysis of charity law’ is such that he is the author of one of the gold standard textbooks on charity law.”

    Chambers and Partners, 2011

    "Meeting this standard requires a devoted author concerned as much with quality of expression as with substantive content... He achieves the difficult goal of remaining comprehensible to a lay audience without sacrificing the detail, sophistication or organization demanded by an expert readership."

    – Adam Parachin, UBC Law Review, Vol. 45.1
    "Hubert Picarda's book is obviously of great significance to all charity lawyers. We have all been waiting for this new edition with baited breath!"
    – Christopher McCall QC.

    “There is no need for me to add my endorsement to a work which is recognised throughout the common law world as a work of exceptional scholarship and which clearly and correctly deals with principles of law applicable to charitable trusts and arrangements….It is good to see this new edition of a leading work in the field” – Mr Justice P W Young AO, Australian Law Journal, (2011) 85 ALJ 185

    “The author has produced an admirable work, dealing with all the major changes in charity law that have taken place in the last few years…Anyone who has had the pleasure of listening to the author, Hubert Picarda QC, lecture on the topic of charity law will have been struck by his passion and expertise on the subject. This text is written with the same enthusiasm and the reader will inevitably enjoy the elegant prose and legal rigour throughout…A reader picking up the book and reading it from start to finish would find themselves on a sensible (and enjoyable) journey through the law and practice of charities…The text does not assume a detailed knowledge of charity law and is therefore suitable for a relative newcomer to this field. However, the text also contains sufficiently detailed analysis for it to be a valuable resource for the seasoned practitioner looking to deal with the latest conundrum presented by a client…
    A welcome publication…Each of the 60 chapters has something to offer the practitioner…Each of the chapters is well written and would make a good starting point for understanding the law relating to public benefit following implementation of the Charities Act 2006 and the subsequent guidance issued by the Charity Commission…Practitioners will be likely to dip into a number of chapters on a regular basis.”

    Alison Talbot, Blake Lapthorn, in Private Client Business, Issue 3, 2011
    “The book is therefore not only a comprehensive and up to date guide on the whole area of the law and practice relating to charities, but at all times provides practical and detailed synergy of the law and procedure. Very topical issues of significance are helpfully and fully addressed by the author – an eminent specialist in this field of law. I feel sure that this book will prove to be a vital and important addition to the library of any Charity law practitioner.”
    - Henry Frydenson, Chairman, ACTAPS, Principal, Frydenson & C

    PROFILE OF CASEWORK of Hubert Picarda QC

    Cases over the last year have covered an eclectic range of advice-giving, whether involving organisations with huge charitable resources, or small charities with limited means but which do valuable charitable work. His formal opinion was, or observational comments were, at various stages sought and given or volunteered in the following cases some of which were on DIRECT ACCESS

    • Plymouth Brethren Christian Church meeting house (Exclusive Brethren) in the Preston Down case, now compromised, concerning public benefit in religion

    • Chinachem charitable claim to exercise predominant charitable control as opposed to a trust over the fortune of late Nina Wang, the richest woman in Asia, which concluded in the Court of Final Appeal in Hong Kong.

    • Constitutional and procedural queries in connection with two separate national charities of very considerable eminence
    • Rearrangements of commercial planning in relation to charitable civic recreational leisure centres of a major Yorkshire Town Council
    • Merger between two charitable education foundations advancing business education
    • Membership dispute in a prestigious cultural charity ,
    • Dispute in Rudolf Steiner Camphill Village movement over structural changes affecting live in community care volunteers helping persons with learning difficulties and personality challenges
    • Disputes in mosque and Sikh temple cases and
    • Constitutional queries concerning a school for children with learning disabilities.
    Pro bono work has included
    • Submissions to the Law Commission on specific issues of charity law
    • Visit to a University of Montreal International Seminar in May 2015 to present a paper and address reviewing charity law in the past year.
    • A major contribution to the benefit of the charity sector as a whole is Picarda’s Supplement (Nov 2014) to Picarda on Charities (Bloomsbury 4th edn 2010 ) which has attracted many admiring plaudits, viewable on the internet, for its clarity, style, utility and authoritativeness, all persistent aims of his.
    ©Hubert Picarda QC

    SOME OTHER NOTABLECASES IMMEDIATELY PRECEDING TWO YEARS

    • Dispute over the sale of Sir Edward Heath’s Salisbury house
    • Challenge to Lytham Blackpool schools merger scheme in Charity Tribunal and tribunal appearance in First-tier tribunal in Aliss v Charity Commission for England and Wales
    • Reorganisation of a multi million pound charity for air and shipping safety
    • Division of funds of a Jewish youth centre on its dissolution
    FOR FURTHER DETAILS See www.charitylawchambers.co.uk

    DISCLAIMER

    This bulletin is issued on the strict understanding that it does not constitute legal advice or establish any lawyer client relationship . The contents are intended for general information purposes only and under no circumstances can be relied upon for legal decision taking. Readers are advised to consult a suitably qualified lawyer and to secure written advice concerning the specifics of their situation.

    ©Hubert Picarda QC

     

     

    Publications including articles

    The Institute of Chartered Accountants in England and Wales (ICAEW) published TECH 16/14BL 'Guidance on donations by a company to its parent charity'.
    The Essential Trustee: what you need to know what you need to do (CC3 ) (July 2015) 39pp
    Whistleblowing: guidance for charity employees (12 October 2015)
    Proposals for Reforming the Tax Treatment of Termination Payments (21/10/15) Eversheds international.
    Professor Hilary Bielder , ‘Trust for the Relief of Poverty and Public Benefit:Time for a Re-appraisal?’Trust Law International Vol 28, No 3, 2014,145-156.
    Dr Mary Synge ‘Independent Schools Council v Charity Commission for England and Wales’ [2012] CLJ 45.
    Sloan ‘Public Schools for Public Benefit?’ [2012] CLJ 45.
    Mullender ‘Charity Law Education and Public Benefit : An Oakshottian Analysis’ (2012) 128 LQR 188.
    Jaconelli ’Adjudication on Charitable Status:A Reconsideration of the Elements’ [2013] Conv 96.
    Dr Mary Synge ‘Poverty an Essential Element in Charity After All’ [2011] CLJ 649
    Hilary Juliet Chevalier-Watts Shedding the shackles of Bowman: A critical review of the political purpose doctrine and charity law in New Zealand NZLJ, April 2015, 108 – 115
    Juliet Chevalier-Watts ‘The Operation of Public Benefit in New Zealand-Meeting Contemporary Challenges CLPR Vol 17 May 2015 , 173—193 ( Greenpeace (political ) , Presbyterian Church of New Zealand Beneficiary Fund v CIR, Liberty Trust v Charity Commission (religion) .

    Sir john Mummery ‘The Charuty expreienc
    .

    Books received since 1 October 2014
    Terrance S Carter Maria Elena Hoffstein Adam Parachin (ed) 2015 Edition Charities Legislation & Commentary Lexis Nexis Canada Inc 2015, Commentary 1-51, Legislation 65-961 Index 963-988
    Malcolm Cope (ed) Interpreting Principles of Equity: The W A Lee Lectures 2000-2013 Foreword The Hon Chief Justice Paul de Jersey AC, The Federation Press (2014) 1-353 Index 354 -362. See the 2011 W A Lee Equity lecture Malcolm Cope Introduction 294- 296 and Chapter 12 The Hon Justice Margaret McMurdo AC ‘Faith hope and Charity : the Resilience of the Charitable Trust from the Middle Ages to the 21st Century’.

    Matthew Harding Ann O’Connell and Miranda Stewart (ed) Not-for-Profit Law: Theoretical and Comparative Perspectives Cambridge University Press (2014) xxviii 1- 386, Index 387-393.
    Con Alexander & the Charities Team at Veale Wasborough Vizards Charity Governance (Jordans 2nd edn 2014) v- xxxiii, 1-408 , Appendix 409-410 Index 411-431.

    Mary Synge The New Public Benefit Requirement: Making Sense of Charity Law?( Bloomsbury Hart Publishing,2015 )With a Foreword by Hubert Picarda QC vii-ix 250pp Bibliography Index
    Terrance S Carter and U Shen Goh Branding and Copyright for Charities and Non-Profit Organisations (LexisNexis Canada Inc 2nd edn June 2014) 1- 263, Appendix I Trade Marks Act 265-317, Appendix II Copyright Act 319-500.

    Notice of UK and overseas books

    William Henderson Jonathan Fowles and Julian Smith (ed) Tudor on Charities (10th edn, November 2015 ,Sweet & Maxwell)
    Jonathan Garton Public Benefit in Charity Law (Oxford University Press 2013)
    McGregor Lowndes and O Halloran (eds) Modernising Charity Law: Recent Developments and Future Directions (Edward Elgar 2010)
    Keane Equity and the Law of Trusts in the Republic of Ireland, 2nd ed, (Bloomsbury Professional 2011)
    Donald J Bourgeois The Law of Charities and Not-for-Profit Organisations (4th edn LexisNexis Canada, 2012, 30/11/12 )
    Juliet Chevalier-Watts The Law of Charity, (Thomson Reuters NZ , 2015)
    Susan Barker Michael Gousmett and Ken Lord Law and Practice of Charities in New Zealand (LexisNexis NZ Ltd 2013)
    Terrance S Carter Maria Elana Hoffstein Adam M Parchin (ed ) Charity Legislation and Commentary 2016 LexisNexis Canada (21/10/15)
    ©Hubert Picarda QC

    Reviews of Picarda The Law and Practice Relating to Charities, Fourth Edition(2010) and Supplement October 2014

    “Lawyers heap praise on the ‘learned, academic and fascinating’ authority that is Hubert Picarda QC, who advises on an array of both non-contentious and hotly disputed charity cases. His ‘superb, detailed analysis of charity law’ is such that he is the author of one of the gold standard textbooks on charity law.”

    Chambers and Partners, 2011

    "Meeting this standard requires a devoted author concerned as much with quality of expression as with substantive content... He achieves the difficult goal of remaining comprehensible to a lay audience without sacrificing the detail, sophistication or organization demanded by an expert readership."
    –Adam Parachin, UBC Law Review, Vol. 45.1
    "Hubert Picarda's book is obviously of great significance to all charity lawyers. We have all been waiting for this new edition with baited breath!"
    –Christopher McCall QC.
    “There is no need for me to add my endorsement to a work which is recognised throughout the common law world as a work of exceptional scholarship and which clearly and correctly deals with principles of law applicable to charitable trusts and arrangements….It is good to see this new edition of a leading work in the field”
    –Mr Justice P W Young AO, Australian Law Journal, (2011) 85 ALJ 185
    “The author has produced an admirable work, dealing with all the major changes in charity law that have taken place in the last few years…Anyone who has had the pleasure of listening to the author, Hubert Picarda QC, lecture on the topic of charity law will have been struck by his passion and expertise on the subject. This text is written with the same enthusiasm and the reader will inevitably enjoy the elegant prose and legal rigour throughout…A reader picking up the book and reading it from start to finish would find themselves on a sensible (and enjoyable) journey through the law and practice of charities…The text does not assume a detailed knowledge of charity law and is therefore suitable for a relative newcomer to this field. However, the text also contains sufficiently detailed analysis for it to be a valuable resource for the seasoned practitioner looking to deal with the latest conundrum presented by a client…

    A welcome publication…Each of the 60 chapters has something to offer the practitioner…Each of the chapters is well written and would make a good starting point for understanding the law relating to public benefit following implementation of the Charities Act 2006 and the subsequent guidance issued by the Charity Commission…Practitioners will be likely to dip into a number of chapters on a regular basis.”

    -Alison Talbot, Blake Lapthorn, in Private Client Business, Issue 3, 2011
    “The book is therefore not only a comprehensive and up to date guide on the whole area of the law and practice relating to charities, but at all times provides practical and detailed synergy of the law and procedure. Very topical issues of significance are helpfully and fully addressed by the author – an eminent specialist in this field of law. I feel sure that this book will prove to be a vital and important addition to the library of any Charity law practitioner.”
    - Henry Frydenson, Chairman, ACTAPS, Principal, Frydenson & Co

    ©Hubert Picarda QC

    PROFILE OF CASEWORK OF HUBERT PICARDA QC

    Cases over the last year have covered an eclectic range of advice-giving, whether involving organisations with huge charitable resources, or small charities with limited means but which do valuable charitable work. His formal opinion was, or observational comments were, at various stages sought and given or volunteered in the following cases, some of which were on direct access
    • Plymouth Brethren Christian Church meeting house (Exclusive Brethren) in the Preston Down case, now compromised, concerning public benefit in religion
    • Chinachem charitable claim to exercise predominant charitable control as opposed to a trust over the fortune of late Nina Wang, the richest woman in Asia, which concluded in the Court of Final Appeal in Hong Kong.
    • Constitutional and procedural queries in connection with two separate national charities of very considerable eminence
    • Rearrangements of commercial planning in relation to charitable civic recreational leisure centres of a major Yorkshire Town Council
    • Merger between two charitable education foundations advancing business education
    • Membership dispute in a prestigious cultural charity ,
    • Dispute in Rudolf Steiner Camphill Village movement over structural changes affecting live in community care volunteers helping persons with learning difficulties and personality challenges
    • Disputes in mosque and Sikh temple cases and
    • Constitutional queries concerning a school for children with learning disabilities.

    ©Hubert Picarda QC

    Pro bono work has included

    • Submissions to the Law Commission on specific issues of charity law
    • Visit to a University of Montreal International Seminar in May 2015 to present a paper and address reviewing charity law in the past year.
    • A major contribution to the benefit of the charity sector as a whole is Picarda’s Supplement (Nov 2014) to Picarda on Charities (Bloomsbury 4th edn 2010 ) which has attracted many admiring plaudits, viewable on the internet, for its clarity, style, utility and authoritativeness, all persistent aims of his and which are continued in the Supplement.

    Some other notable cases in the immediately preceding two years and the subject of Opinions in addition to earlier advice in cases continued into the current year

    • Dispute over the sale of Arundells House Sir Edward Heath’s house in the close of Salisbury Cathedral
    • Challenge to Lytham Blackpool schools merger scheme in Charity Tribunal and tribunal appearance in First-tier tribunal in Aliss v Charity Commission for England and Wales
    • Reorganisation of a multi million pound charity for air and shipping safety
    • Division of funds of a Jewish youth centre on its dissolution

    FOR FURTHER DETAILS See www.charitylawchambers.co.uk

    ©Hubert Picarda QC

    [1] Holmes v AG ,The Times 12 Feb 1981.

    [2] C Decker and M Harding Three Challenges in Charity Regulation’ in M Harding A O’Connell and M Stewart (ed) Not-for Profit Law : Theoretical and Comparative Perspectives (Cambridge University Press 2014 Chapter 14 at  331-335 Dr Mary Synge The New Public Benefit Requirement (Bloomsbury 2015)  78 -80 ;and in Synge M , ‘A state of flux in Public  Benefit Across UK Ireland & Europe’ CLPR Vol 16, 2013-14, 163-188 at 171; Oonagh B Breen ‘Long day’s Journey : The Charities Act 2009 and Recent Developments in Irish Charity Law ‘ CLPR Vol 17 2015 May 2015 91 at 108-109 (religion); Fiona Martin  Recent Developments in Australian Charity Law ; One Step Forward and Two Steps Backward CLPR Vol 17 , May 2015, 23-45 at 36-38 (commenting inter alia on Re Word Investments

    [2008] HCA 55 [24] (funeral business on commercial lines did not detract from advancement of religion and charitable status because all profit went to charitable destination).

    [3]Christopher Decker and Matthew Harding Three Challenges in Charity Regulations : the case of England and Wales Matthew Harding Ann O’Connell and Miranda Stewart (ed) Not-for Profit Law : Theoretical and Comparative Perspectives (Cambridge University Press 2014 Chapter 14 at at 331-332

    [4] This tendency on the part of the Commission to invoke  a fluid set of notions about changing perceptions and conditions (social and economic consequences)  to justify reviewing and reversing settled law or to hold that charitable status can be lost or removed or denied with relative ease is rightly and cogently criticised by Dr Mary Synge The New Public Benefit Requirement (Bloomsbury 2015)  78 -80 ;and in ‘A state of flux in Public Benefit Across UK Ireland & Europe’ CLPR Vol 16, 2013-14 , 163-188 at 171 and by Professor Peter Luxton  in  Making law? Parliament v The Charity Commission.( Politeia 2009) at 27-28.

    [5] Holmes v AG ,The Times 12 Feb 1981,

    [6] Thus for the advancement of the Christian religion through Brethren Re Brown[1896] 1 IR 423(Brethren )  Re How [1930] 1 Ch. 66 [1929] All ER Rep 354 (Plymouth brethren known as evangelical Christian body and accepted as chartable by appearance of the  Attorney General )  and Re Redish (1909) 26 Ir 42 (Christian missionary periodical run by the Brethren for the furtherance of their Christian missionary work in Africa ) . Regrettably these escaped the attention of counsel and of the court.

     

    [7]Synge M , ‘A state of flux s in Public Benefit Across UK Ireland & Europe’ CLPR Vol 16, 2013-14, 163-188 at 171; Christopher Decker and Matthew Harding ‘Three Challenges in Charity Regulation : the case of England and Wales’ in  Matthew Harding Ann O’Connell and Miranda Stewart (ed) Not-for Profit Law : Theoretical and Comparative Perspectives (Cambridge University Press 2014 Chapter 14 314 at 331-335.

    [8] Ibid Christopher Decker and Matthew Harding ‘Three Challenges in Charity Regulation’.

    [9] There is plentiful literature referred to on the internet under the key words  Salafi doctrine and Salafi Jihadism.

    [10]  The Friends of Three Faiths (Regn No 1092465) was registered on 14 June 2002  and see CC Publication Promotion of Religious Harmony for the Benefit of the Public (Version May 2003 ); and see RR1A.

    [11] Christopher Decker and Matthew Harding Three Challenges in Charity Regulation in M Harding Ann O’Connell and Miranda Stewart (ed) Not-for-profit Law Theoretical and Comparative Perspectives (CUP2014) 324-335 especially at 328-329 and 331-334 ; Mary Synge  The New Public Benefit Requirement Making Sense of Charity Law? (Bloomsbury 2015) 40-41; Sir John Mummery ‘The Charity Experience :Cases Courts and Counsel’  Vol 17 CLPR 1-21 at 16-17

    [12]New Advent Catholic Encyclopaedia under Excommunication.

    [13]Orthodox rabbis refuse to officiate at interfaith weddings, and also try to avoid assisting them in other ways. Secular intermarriage is seen as a deliberate rejection of Judaism , and an intermarried person is effectively cut off from most of the Orthodox community, although some Chabad-Lubavitch and Modern Orthodox Jews do reach out to intermarried Jewish couples.
    [14]Salvation Army relaxes marriage rules: see BBC News 30 August 2000. Previously officers who married persons other than officers ceased to be allowed to work, or were excluded from working, as officers.
    [15]See however the following articles or blogs in Lexology Herbert Smith Freehills LLP United Kingdom : Richard Norridge and Joanna Caen ‘The Nina Wang will saga: the penultimate chapter’ May 26 2015; Lexology Herbert Smith Freehills LLP United Kingdom Gareth Thomas and Richard Norridge ‘Hong Kong Court of Appeal upholds Court of First Instance decision that billionaire had bequeathed her fortune as a charitable trust and not as an absolute gift’ June 5 2014 ; Deidre Fu ‘Passing your Estate to a discretionary trust by will – pitfalls to avoid’ Winston &Strawn LLP Hong Kong Oct 2 2015.

    [16] It embodies not a bilateral or multilateral commercial arrangement but the will maker’s personal wishes and directions as to the disposition of  his or her estate.

    [17] The  will speaks from the time of the will maker’s  death The armchair principle is limited to, and only  applies to, facts known at the time the will was made.

    [18] Poon J at paras 33and 34

    [19] Lam VP Cheung and Kwan JJA para 34

    [20] [2015] AC 129.

    [21] [2014] EWHC 2577 (Ch) , Deputy Judge Richard Spearman QC.

    [22] Meryl Thomas .The longer you look at a [will] ,the more abstract it becomes …Construction and Secret Trusts : Rawstron and Pearce v Freud  TLI  Vol 28,No3,  2014, 157-162  (Case Note) .

    [24] Liverpool & District Hospital for Diseases of the Heart v Attorney General [1981] Ch 193 (Slade  J)

    [25] Re Vernon [1972] Ch 300 at 303 (Buckley J )

    [26] Von Ernst & Cie v IRC [1980]1 WLR468; [1980]1 All ER  677.

    [27] Re Buckton [1907] 2Ch 406 at 414-416 per Kekewich J.

    [28] Re Shree Swaminarayan Satsang [2012] EWHC 1645 (HC) ; [2010] PTSR D39.

    [29] Counter-terrorism and Security Act 2015 s 52(3.)

    [30] David Anderson QC Analysis and Opinion The Independent Review of UK Terrorism Law (Intersentia February 2015) 432-446

    [31] The First Annual report was on 15 December 2011 the Second on 17 December 2012 the Third on 11  February 2014 the Fourth on 16 July 2015

    [33] see Victoria Metcalfe-Hough Tom Keatinge and Sara Pantuliano UK humanitarian aid in the age of counter-terrorism : perceptions and reality (March 2015) 1-27 double column pages

    [34] For criticism of the strategy see  Paul Thomas, Responding to the Threat of Violent Extremism – Failing to Prevent, (London: Bloomsbury Academic, 2012).xi , 177 pp; Paul Thomas Preventing violent extremism under the Coalition Posted on 16/12/2013 at 9:50 pm; cf Naser Meer and Tariq Modood, ‘The Multicultural state we’re in: Muslims, ‘multiculture’ and the ‘civic re-balancing of British Multiculturalism’, Political Studies, 57:3 (2009), 473-497.

    [35] See Statement by Theresa May Secretary of State for the Home department 4th November 2015  1239 pm and see her subsequent  observations on questions raised by Andy Burnham about the views of David Anderson QC on the Bill as to which see Report on Investigatory Powers Bill in fn 36 below

    [36]See the impressive and judiciously balanced A Question of Trust Report of the Investigatory Powers Review (11 June 2015) under DRIPA 2014 s7 laid before Parliament that day. See also the cautions and reservations in David Anderson QC Terrorism Prevention and Investigation Measures in 2014 Third Report of the Independent Reviewer on the Operation of the Terrorism Prevention and Investigations Measures Act 2011 para 9.30 cited above

    [37] "Promoting Tolerance and Reconciliation: Fostering Peaceful, Inclusive Societies and Countering Violent Extremism".

    [38] See for example Re Webber [1954] 1 WLR 1500 (scouts cubs and  brownies) .

    [39]   In modern parlance and in the context of terrorism radicalisation represents the process by which a person comes to support  terrorism and forms of extremism leading to terrorism.Extremism is given the special meaning of vocal or active opposition to British values. It envisages inter alia monitoring on-line behaviour without restricting it, so that there should be no hindrance to honest intellectual enquiry: Sally-Ann Griffiths ‘Countering radicalisation in schools’ Independent Education Today’ posted June 22  2015. 

    [40] see  Preventing extremism in schools and children's services:  Email: Telephone 020 7340 7264. The guide ‘The use of social media for online radicalisation’ is also available to help schools. Departmental advice helps you understand how to comply with the law or explains what our p

    [41] By promoting British values in schools as set out in the Department for Education’s five-part definition of British values: democracy; the rule of law; individual liberty; mutual respect; tolerance of those of different faiths and beliefs

    [42] ]The compatibility of Islamic law with human rights has attracted considerable literature and controversial debate. Among the most recent studies, see : Zalfia Abawe The Compatibility of |Islamic law with International Human Rights Law www.academia.edu/6976433 ; Anver M Emon, Mark  Ellis & Benjamin Glahn Islamic Law and International Human Rights Law (11 October 2012 Oxford UP );Ann Elizabeth Mayer Islam and Human Rights :Tradition and Politics (5th ed Westview Press University of Pennsylvania )320pp ; Abdullah An-Naim, and Professor Mashood A. Baderin (ed) Islam and Human Rights: Selected Essays of Abdullahi An –Na’im (Ashgate 2010) 372 pp. Compatibility with the law generally and with charity law public benefit and public policy clearly needs attention.

    [43]Counter Extremism Strategy (October 2015) 21 -22 (Chapter 3 Countering Extremist Ideology).
    [44]Louise Casey CB has been successively deputy director of Shelter Head of Antisocial Behaviour Unit ,Victims' Commissioner, and since 1 November 2011 Director General, Troubled Families as well as being involved in the Investigation into failures in the social services in Rotherham

    [45]Mark Sidel Regulation of The Voluntary Sector: Freedom and Security in an age of uncertainty (Routledge 2010)35-52, 104-114.

    [46] Professor Hilary Biehler’The Political Purposes Exception – Is there a Future for a Doctrine Built on Foundations of Sand?’ Trust Law International Vol 29 Number 3 2015 97-113

    [47] Richard Adams The Guardian ‘ London Oratory school wins partial victory in admissions ruling 17 April 2015 In the Queen’s Bench Division reporting Cobb J in R (On the application of the governors of London Oratory School) v  The Schools Adjudicator (Defendant) The British Humanist Association and Secretary of State for Educations (Interested Parties) [2015] EWHC 1012 (Admin)

    [48] See Report of the Advisory Group on campaigning and the Voluntary Sector under the chairmanship of Baroness Helena  Kennedy of the Shaws  QC

    [49] Notably Peter Luxton Making New Law Parliament v The Charity Commission  Politeia  Picarda op cit Chapter 16 and especially 248-254;

    [50] Picarda op cit Chapter 16 and especially 248-254;

    [51] Molloy v Commissioner of Inland Revenue [1981[ 1 NZLR 688; McGovern v Attorney General [1982] Ch 321; Action by Christians for the Abolition of Torture v Canada (2002) 225 DLR (4th) 99.

    [52] Matthew Harding Ann O’ Connell and Miranda Stewart(ed) Not-for Profit Law Theoretical and Comparative Perspective (CUP 2014)(Harding Not for Profit Law) including Matthew Turnour and Elizabeth Turnour Archimedes Aid /Watch, constitutional levers where we now  stand 37-60 at 42-52 52-54 , 56-57  (limiting public benefit to exclude organisations  subversive of democracy)  39-55;  GE Dal Pont ‘ Charity law no magic in words’ibid at  87-112 especially at 102-103 on Aid/ Watch; HPicarda ‘Charities Act 2011 : Dog’s breakfast or dream come true’) ibid at 134- 158;   Matthew Harding Charity law and the Liberal State (Cambridge University Press,2014); Kathryn Chan Continuing Legal Education Society of British Columbia  ‘Backgrounder for talk on the Political Purposes Doctrine’ Charities and Not-for Profit Conference 2014 Paper 2.1.1-2.1.10 ; Maurice Cullity QC ‘Charity and Politics in Canada-A legal Analysis ‘ (Pemsel Case Foundation 2014) www.pemselfoundation .org/sites/default/files/MCullity.

    [53] L A Sheridan ‘Charitable Causes Political Purposes and Involvement’(1980) 2 The Philanthropist 5.

    [54] G E Dal Pont Law of Charity (LexisNexis Butterworths Australia 2010) 289-307 paras [12.11]-[12.36]; Dr Mary Synge The ‘New’ Public Benefit Requirement: making Sense of Charity Law ?

    [55] By the insertion in CA 2006 s2(2) ( c) of a provision in s 2(3) to the effect that the word ‘religion’ in s2(2)(c) includes (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god: CA 2006  s2(3)((a) and (b).

    [56]  For CC Promotion of equality and  diversity for the public benefit, see forms .charity forms.charitycommission.gov.uk/media/90236/ped.pdf; ; and see RR8 and RR12.

    [57] Matthew Harding Ann O’ Connell and Miranda Stewart(ed) Not-for Profit Law Theoretical and Comparative Perspective (CUP 2014) including Matthew Turnour and Elizabeth Turnour Archimedes Aid /Watch, constitutional levers where we now  stand 37-60 at 42-52 52-54 , 56-57  (limiting public benefit to exclude organisations  subversive of democracy ibid 39-55);  GE Dal Pont Charity law no magic in words ibid at 87-112 especially at102-103 on Aid/ Watch  ; H Picarda Charities Act 2011 : Dog’s Breakfast or Dream come true ibid at134- 158; Matthew Harding Charity Law and the Liberal State (Cambridge University Press,2014.

    [58] Karen Brennan ‘ Criitical perspectives on the security of and protection of human rights defenders’  International Journal of Human Rights Special issue Vol 19 Issue 7 October 30  2015 908-934. And see other articles in same issue.

    [59] It is the largest organisation in the UK campaigning for an end to religious privilege and to discrimination based on religion or belief, and for a secular state. Among other campaigning issues areissue concerning faith schools and other educational issue  ethical issues the census and other campaigns detailed on their website.

    [60] This definition of humanism even as, indeed particularly as, supplemented by the definitional  verbiage of 4.1.1 . (a non-religious ethical life stance the essential elements of which are a commitment to human wellbeing and a reliance on reason, experience and a naturalistic view of the world) represents a vague and  loose  formulation giving rise to predictable queries about a naturalistic view of the world and hardly corresponds to any analogy ruled on under the common law derived from the preamble.

    [61]The Human Dignity Trust v Charity Commission for England and Wales July 6 ,2014.Detailed comments on the HDT case are to be found in Terrance S Carter ‘Judicial Renderings-Interesting Cases to Consider’ Canadian Bar Association’s Conference May 29 2015 (on the NZSC decision in Re Greenpeace of New Zealand Incorporated [2014]   and the Human Dignity Trust case); Kathryn Chan; Kathryn Chan ‘Backgrounder for talk on the Political Purposes Doctrine’ Continuing Legal Education Society of British Columbia  Charities and Not-for Profit Conference 2014 Paper 2.1.1-2.1.10

    [62]  Sound administration may not  allow the promotion of challenging litigation

    [63] S Brodie,QC. (2010) ‘The Charity Commission: Politicised and politicising’, Economic Affairs, 30, 3, 9-13.; Christopher Snowdon ‘Sock Puppets:  How the Government lobbies itself’ IEA discussion paper No39 (June 2012);and also ‘The Sock Doctrine What can be done about state funded political activism’ February 2014 IEA Discussion Paper No53

    [64] CL&PR Vol 17 ,2014-15 Sir John Mummery The Charity Experience Cases , Courts and Counsel 1- 21 at 16-17

    [65] CL&PR Vol 17 ,2014-15 Sir John Mummery The Charity Experience Cases , Courts and Counsel 1- 21 at 16-17

    [66] See RSPCA v of Historic Interest or National beauty [1998] 2 All ER 705 at 719 per Robert walker J British Attorney General [2001] 3 All 530 at 551 per Lightman J ; Scott v National Trust for Places Of Historic interest or Natural Beauty [1998] 2 All ER 705 at 719 per Robert Walker J ; British Diabetic Association v Diabetic Society [1995] 4 All ER 812 at 816 per Robert Walker J.

    [67] No evidence to that effect was filed.

    [68] See  Re Bushnell [1975]1 All ER 721 (advancing teaching of socialised medicine: political controversial and not charitable}; Anglo-Swedish Society v IRC (1931) 47 TLR 295 ( inculcating attitude of mind not usually charitable); McGovern V Ag [1982] Ch 321  Re Koeppler’s Will Trusts[1984] Ch 243 at 247-248 (propagation of tendentious political opinions not charitable) and dicta of Lord Parker in Bowman v National Secular Society[1917] AC 406 at 442

    [69] See the discussion in Picarda Law and Practice Relating  to Charities  (4th ed Bloomsbury Professional 2010) 236 (swaying public opinion on controversial social issues) 236-242  and 239-240 citing Re Hopkinson [1949] 1 All ER 346  346 at 350 and many other cases.

    [70] Re Greenpeace of New Zealand Incorporated [2014] NZSC 105. For discussions of the case up to an including Supreme Court of New Zealand decision see Matthew Lark ‘SC decision garners problems and prospects for charities’ Law News Auckland District Law Society Inc (ADLSI)  Issue 34,3 October 2014, 1-2and 10; Matthew Harding ‘An Antipodean View of Political Purposes and Charity Law (2015) 131 LQR 181 – 186.cf  Professor Hilary Biehler ’The Political Purposes Exception – Is there a Future for a Doctrine Built on Foundations of Sand?’ Trust Law International Vol 29 Number 3 2015 97-113(summarising some of the antipodean literature)   See also  Terrance S Carter ‘Judicial Renderings-Interesting Cases to Consider Canadian Bar Association’s Conference May 29 2015 (on the NZSC decision in Re Greenpeace of New Zealand Incorporated [2014] NZSC105 and the Human Dignity Trust case) and Juliet Chevalier-Watts ‘The Operation of Public Benefit in New Zealand- Meeting Contemporary Challenges ?’ CLPR Vol 17 (May 2015) 173-193 at  181-188; Kathryn Chan ‘Backgrounder for talk on the Political Purposes Doctrine’ Continuing Legal Education Society of British Columbia  Charities and Not-for Profit Conference 2014 Paper 2.1.1-2.1.10

    [71]Re Greenpeace of New Zealand Incorporated  [ 2011] 2 NZLR 815

    [72] Re Greenpeace of New Zealand Incorporated [ 2013] 1 NZLR 339

    [73] Re Greenpeace of New Zealand Incorporated [2011 2 NZLR 815paras [8]-[17].

    [74] Re Greenpeace of New Zealand Incorporated  [ 2011] 2 NZLR 815

    [75] Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42; 241 CLR 539 (FrenchCJ, Gummow hayne, Grann and Bell  JJ)’

    [76] Matthew Harding ‘An Antipodean View of Political Purposes and Charity Law (2015) 131 LQR 181 – 186.; Professor Hilary Biehler ’The Political Purposes Exception – Is there a Future for a Doctrine Built on Foundations of Sand?’ Trust Law International Vol 29 Number 3 2015 97-113(summarising some of the antipodean literature)

    [77] Re Jones (1929) 45 TLR 259; Bonar Law Memorial Trust v IRC (1033) 17 TC 508 cf Russell v Jackson (1852) 10 Hare 204; advocating or opposing any change in the law policy or administrative practice of this country, see Picarda Law and Practice Relating to Charities (4th ed 2010 Bloomsbury Professional ) 234 - 236.  And see Picarda 4th ed Supplement (2014)  Chapter 16 and 17 pp 41 -47

    [78] see Picarda op cit 234 - 236

    [79] McGovern v Attorney General [1982] Ch 321 citing Bowman v Secular Society Limited [1917] AC 406 and National Anti-Vivisection Society v IRC [1948] AC 31, HL;

    [80] McGovern v AG [1982] Ch 321. And see Baldry v Feintuck [1972] 1 WLR 552;  Webb v O’Doherty (1991) Times, 11 February

    [81] Buxton v Public Trustee (1982) 41 TC 235 Cf English Speaking Union of the Commonwealth [1977] Ch Com Rep 17–18 paras 48– 0 (charter amended to restrict objects to educational elements in the wider signification).On the promotion of racial and religious harmony: which are charitable objects : see The Community Security Trust (1994) 4 Decisions of the Charity Commissioners (1995) 8-12 trusts to eliminate racism and anti-semitism) . And see  The Three Faiths Forum (CC2002) Promotion of religious harmony for the benefit of the Public.

    [82] See Picarda op cit at 236 – 237.

    [83] See Picarda op cit  at 236 – 237.

    [84] Regd No 108857.

    [85] Human Life International Inc Canada v Minister of National Revenue [1998]1CTC232 following Positive Action against Pornography v Minister of National Revenue[1998] 3FC302. In New Zealand controversial politicking is now dealt with more indulgently : see Re Greenpeace of New Zealand Incorporated [ 2013] 1 NZLR 339

    [86] [1982] Ch 321
    [87] [2000] EWCA Civ 204 at [29]
    [88] [1975] 1 All ER 721
    [89] [1949] 1All ER346
    [90] The Report of 26 July 2010 of the Commission investigation into The Atlantic Bridge Education and Research Scheme which promoted ’Atlanticism’ has been withdrawn and the charity closed
    [91] New Schools Network has twice been criticised for undue political activities by Lisa Nandy Labour MP for Wigan while unsuccessfully pressing for an inquiry concerning that body: see Kaye Wiggins Charity Commission criticised over refusal to investigate 'political activity' at free schools charity Third Sector Online 31 October 2011;

    [92] See Toby Helm and Christopher Hope ‘The top twelve think tanks in Britain ‘ Telegraph 24 January 2008; The Guardian List of Think tanks 30 September 2013 ; Wikipaedia  List of think tanks in the United Kingdom (129 plus, 2 November 2015 ); and see generally  Think Tank Review edited by Rowland Manthorpe  accessing : thinktankreview@thinktankreview (inspected 26 Novemeber 2015).

    [93] The Centre for Policy Studies founded by Mrs Thatcher (later Baroness Thatcher) and Sir Keith Joseph is not a charity . Nor is the Fabian Society.

    [94] Jim Pickard’ Commission calls for think-tanks’ funding disclosure’ Financial Times October 25,2011

    [95] Atlantic Bridge Charity Commission Report 26 July 20

    [96] Compass describes itself as a  democratic direction for the left with a more coherent and radical programme for a “progressive left” government.

    [97] By the Local Schools Network (of which Melissa Benn and Fiona  Millar are leading lights): see further http://www.localschoolsnetwork.org.uk/2014/07/new-schools-network-warned-by-charities-commission-about-the-need-to-be-impartial-again/#sthash.LlV7rO9Q.dpuf.

    [98] Karl Whiting  Why all charities aren’t Kids Company (October 15 ,2015)

    [99] S Brodie,QC. (2010) ‘The Charity Commission: Politicised and politicising’, Economic Affairs, 30, 3, 9-13.; Christopher Snowdon ‘Sock Puppets:  How the Government lobbies itself’ IEA discussion paper No39 (June 2012);  The Sock Doctrine What can be done about state funded political activism February 2014 IEA Discussion Paper No53 . See ‘When think tanks are charities’, Solicitors’ Journal vol. 156 15, 17 April 2012, which sets out the Charity Commission’s current thinking and why existing think tanks are not being removed from the register.

    [100] The Sock Doctrine What can be done about state funded political activism February 2014 IEA Discussion Paper

    [101] No53 NIRAA’s World Directory of Think  tanks

    [102] See Charity Commission report dated 19 June 2012 supplementing Atlantic Bridge Education  and Research Group  report on 25 July 2010 .  Atlantic Bridge Education and Research Group is now defunct

    [103] See the Charity Commission report on the Smith Institute July 2008. The Smith Institute is named after John Smith , Scots Labour MP and is not to be confused with the libertarian Adam Smith Institute which is not a charity

    [104]  See Competition & Markets Authority (CMA)  Unfair Contract Terms  Guidance  Guidance  on unfair terms and provisions in the Consumer Rights Act 2015  July 31 2015 CMA 37

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

Subscribe to the Bloomsbury Professional Law Newsletter

Law Online

Bloomsburyprofessionallaw Online research for solicitors and barristers practising in English law Free Trial

Need Help?

Bloomsburyprofessionallaw If you need any help with finding publications or just ask a question. Talk to an Advisor: 01444 416119
customerservices@bloomsburyprofessional.com
or send us a message